Contact with Caution

The status of a commercial listing isn't always clear, so approach an owner carefully to offer you services.

December 1, 2008

Q: I’ve been an independent broker for some time and have always respected the sign of another real estate practitioner placed on a property. I’ve recently relocated to a new market and as I began soliciting commercial property owners for listings, I came across several with old, dilapidated signage. I’ve checked these properties on the MLS, LoopNet, and the broker’s Web site and found no indications of a current listing. Is it ethical to contact the owner about actively marketing the property? Should I contact the broker and ask if he or she has a current listing on the property?

A. Standard of Practice 16-4 requires that "REALTORS® shall not solicit a listing which is currently listed exclusively with another broker." While the condition of the sign and other lack of promotion may indicate that the property is not actively being marketed, you can’t be sure with a commercial property. Many commercial properties aren’t required to be listed in MLS systems or might not be promoted through the other avenues you mention. Instead, as you probably know, brokers may promote properties directly to their own contacts and past clients.

So your best and safest course of action is to call the broker whose sign is on the property and ask the nature and expiration date of the listing. If the listing is an exclusive listing and not yet expired, you can’t call the owner. If the listing is not an exclusive listing or the listing has expired, you can call the owner to list the property.

If the listing broker refuses to tell you the type of listing or the expiration date of the listing, you may contact the owner to secure that information and "may discuss the terms upon which the REALTOR® might take a future listing or, alternatively, may take a listing to become effective upon expiration of any existing exclusive listing," as provided in Standard of Practice 16-4.

As a side note, if the listing has expired and the listing broker has not removed the sign from the property, he is likely in violation of Article 12, as interpreted by Standard of Practice 12-4, which states that "REALTORS® shall not offer for sale/lease or advertise property without authority . . .."

In the end, you should first try to discover the real nature of the marketing arrangement and then decide if and how you can contact the owner.

Bruce Aydt

Attorney Bruce Aydt, ABR, CRB, SRS, is a national real estate educator, a Missouri real estate broker, and past chair of the National Association of REALTORS® Professional Standards Committee.