Legal Issues

The holiday spirit has ebbed away, and the outdoor lights are down (well, except at my neighbor’s house). Its time to take a look forward at the year to come. For the record, I do believe that the housing market will begin to recover this year — but there are even greater issues in play that will affect the home buyer and home seller for years to come. One of those is a brewing controversy over data mining and the internet.

The world wide web revolutionized real estate over the last decade. Lots of people, even those not interested in purchasing a home, love to surf home listing sites to see what their neighbor is asking for their home, or find evidence for appealing their tax assessment, or just to spend a spring afternoon visiting a few open houses. We take it for granted now that many websites will have home listings, virtual tours, value estimates, etc. That may not last much longer.

Here’s why: when the real estate business started, each broker controlled their own listings. If you were searching for a home, you would have to either rely on the yard signs you saw, or visit all your neighborhood real estate offices and ask to see their listing book. This meant you would sit down with a real estate salesperson and literally page through a book to become educated on what properties were available for purchase.

The Multiple Listing Services (MLS) in communities around the nation developed as a way to make it easier for home buyers and home sellers to get together. Each real estate broker who joined the MLS agreed to cooperate with other brokers in the region to show and sell each others’ listings. In exchange, they also agreed to split their commissions on cooperative sales. While this agreement made it easier to become educated on what was available, the public still did not have easy access to MLS listings. You would still have to go to one broker’s office and sit down with a Realtor, but that salesperson could show you 99% of what was for sale in the area. So, you saved time and trouble.

This is essentially what buyers had to do at the dawn of the internet age, although the listing book had been computerized. You and the Realtor would sit down at the computer or go over listing printouts from the MLS. This control over listing data reflected the fact that it is the essential business resource for our industry. Our listing information is the only “product” we make. We then provide the “service” of assisting home buyers and home sellers to negotiate and create a transaction that transfers property from one owner to another.

With the growth of the Web, MLS organizations and individual brokers took this business asset — the listing information — and put it online to make it easier still for buyers and sellers to become educated on what property was for sale. Through agreements with the MLS, other websites bought the right to display this information, too, and so you had the birth of Trulia, Zillow, and dozens of other sites that simply re-posted listing information. They were not brokers and did not create any new listings, so they added other services and trinkets to lure you to their site over their competition’s website. Like many other internet-based businesses, these websites were constantly looking for that special method to earn money: to draw traffic that advertisers would pay for, or to become so influential that the real estate industry itself would have to pay attention.

Here’s where the problems begin. More and more of these websites have found interesting ways to manipulate the listing data, and some have begun displaying this information in ways that makes it unclear who the original listing broker is. Others have begun enrolling potential buyers and selling those names back to Realtors, or gotten broker’s licenses and started asking for a percentage of the commissions from successful transactions where they referred the buyer. Brokers began to wake up to the fact that they have, to a great degree, lost control of their most basic business resource.

There is a growing movement among some brokers to reclaim this control, by once again restricting access to their listing data. If this trend continues and gains momentum, many of these third-party websites will disappear, and others may not be able to display all the properties available for sale in a particular region. Instead of visiting several broker offices, as buyers in the past needed to do, in the future they might have to visit a couple of different websites to be able to find all of the homes for sale. The problem of inaccurate listing data will grow, which can be very frustrating to potential buyers.

As always, a professional Realtor is your best guide as this marketplace changes and evolves.

Several items have come up recently, both in my practice and in the news, regarding the way that clients use the advice their Realtor provides to them in the performance of their agency obligations. The general point of these stories and situations lies in one major question: whose decision is it to buy a property? And how do clients use the advice they receive?

A few weeks ago I was showing properties to a young woman who had come to me through a recommendation. She was looking at listings in a part of town that has a lot of renovation activity, and that she knew had some “rough edges” but was in the process of being “gentrified,” for lack of a better word. She found a property that she liked very much in a location that was further from the real frontier of the neighborhood than many we had viewed. She asked me the question I expected: “Is this area safe?”

I explained to her that this was a question I really couldn’t answer for her. I would never substitute my perception of safety, being male and at 6′ and well over 200 pounds, for hers. Nor would I want her to do so. I gave her what is my standard advice: I provide on this website a link to the Baltimore Police Department’s crime statistic page, where she could look up the various types of crime stats for a radius around that address. I also encouraged her to visit the area at various times of day when she would conceivably be leaving, coming home, or having guests over, and to get her own impressions as to whether she felt safe living her life there.

Obviously, that wasn’t what she wanted to hear. My impression at this time is that I lost her business.

Then, my manager puts a copy of a recent Baltimore Business Journal article in my mailbox at the office, talking about how buyers are now starting to sue their agents because of the advice they gave a few years ago to buy a house at an inflated price, or to buy more house than they were able to afford, etc. My mind went back to this young woman, because it has always been my policy never to forget two very important principles, first: Its not my money. I’m not the one who is going to have to budget for the mortgage payment, and I’m not the one who will be eating peanut butter and jelly if something goes awry. Second: Its not my home. I’m not going to have to put up with the nuisance that is associated with any given neighborhood… and there can be many different types. Parking, traffic, nuisance crime, taxes… everyone has a different irritation threshold.

Real estate agents should never assume they can make decisions for a buyer, whether that means telling a person that an area is safe, perfect for them, or that a particular mortgage is a wise decision. My job is to help that buyer become educated to the point where they can make that decision for themselves. Otherwise, I think that court cases are inevitable, and probably richly deserved.