More Than Just Wiping Your Feet!

I’m sure many of you found your eyes drawn to a news article about a buyer agent who cut short a showing when she discovered an unresponsive and naked elderly man on the floor. The salesperson initially believed the man might be dead but he grunted when she asked whether he was okay. She later said that she did not want him awakening with her standing over him! She left the property without calling anyone but later completed a feedback form referencing her findings. In the feedback, she stated that perhaps he had too much to drink during the Super Bowl! The man eventually died.

It's hard not to be shocked by the situation described in the article. But standing in the shoes of that buyer agent may cause one to pause before rendering judgment. She was embarrassed for a man that she clearly believed was suffering from a hangover and nothing more. We, however, have the benefit of hindsight and know that the agent’s lack of action was the wrong choice for her and the grieving family. The North Carolina Real Estate Commission is now investigating.

Whether there is civil responsibility that would justify a financial verdict against the buyer agent would make a good law school exam. I presume a case will be initiated claiming that the buyer agent’s negligence in failing to seek assistance contributed to a death that otherwise could have been prevented. Expert testimony will be required to establish that the agent’s intervention would have likely produced a different outcome for the man; you can presume there will be expert testimony offered in contradiction. Regardless of the outcome, this is a mess for everyone. Undoubtedly, this is not the kind of press you seek as a real estate salesperson!

So why does this somewhat unusual incident make for an article? It underscores how we take for granted the immense responsibility of having access to somebody’s home, his/her castle, the repository of personal and priceless items and so on. Usually, the problems are less dramatic but over my 45 years of practice, I’ve represented many licensees who have failed to protect a home, or who have negligently entered or exited that home leading to loss or disaster.

Many of the cases involve licensees who have entrusted their buyer clients with lockbox access. In one such case, a buyer agent was sick and throwing up in the bushes outside of the home and simply could not go on. She gave her client the number to the lockbox and left. Other situations are less benign; the agent didn’t want to be bothered so gave access to the buyers. In every case, the licensee made the buyers pledge that they would never reveal how they gained access or that they were not accompanied by the licensee. In all of these cases, the licensees suffered discipline from fine to revocation of a license!

Then there was a listing agent who agreed to periodically take the mail from the mailbox to the kitchen while her seller was out of town. While the seller said that the agent should feel free use the stove to make tea, she never instructed the agent to place the mail near a hot burner! That house burned down. Oops!

There are, too, the “common” stories of agents finding people in bed, including other agents! Unlocked doors and windows are also popular problems, exacerbated when the neighborhood kids find an unlocked window and decide to spray paint walls and redecorate furniture! Lockbox entries provide the name of who last entered but that evidence does not prove who failed to close a window or lock a door. Regardless, if you gained access to a property by lockbox and a short time later there is a loss, you will be on the list of suspects.

Your potential liability when entering a home should not be the primary factor motivating your utmost care; respect and vigilance come first. Be mindful. Let your clients know that you take seriously their trust. Explain how it is that others will access their property. There’s no need for alarm as most visits are benign but at least make sure your client understands how the house is shown and the available options.

Copyright © James L. Goldsmith, Esquire 2023

All Rights Reserved.

 Mr. Goldsmith is an attorney with Mette, Evans & Woodside. He serves as outside legal counsel to numerous Realtor Associations and was a staple on the PAR Legal Hotline for many years. A substantial portion of his practice is dedicated to providing advice and counsel to real estate licensees. He defends real estate salespersons and brokers in civil lawsuits and licensing claims across the Commonwealth. He represent Realtors® in disciplinary cases conducted before the Real Estate Commission. Jim was one of the voices of the PAR Legal Hotline for the first 27 years following its inception in 1992.