Sandy Carroll has recently received several questions about the rights of a seller to deny access to their home or create barriers for entry.  REALTORS wanted to make sure they were honoring their seller’s wishes without being unethical or violating any rule or law. She reached to our State Legal Associate Counsel, Catherine Taylor, for a quick question and answer session:

Hi Catherine, thanks for helping us work through some scenarios with seller clients.  The first question I have is… Does the seller have a right to know the names of the buyer before a showing? We have had a seller instructing their seller’s agent to get the buyer’s name when setting showing appointments. Buyer’s agents are refusing to provide it. Can the seller’s agent make providing this information a condition of showing?

Catherine’s ANSWER:  A real estate professional is obligated to follow the lawful instructions of their client, which in certain cases may be requesting the names of buyers prior to allowing a showing. The problem arises when it is the agent making unilateral decisions to impose requirements. As a best practice, an agent faced with such a request may want to inquire as to the rationale for this information. If the seller’s rationale seems like it could be discriminatory, and thus a potential violation of the Fair Housing Act, the instruction may not be lawful – and if it’s not a lawful instruction then the agent is not obligated to comply.  If the seller simply wants to know who is going to be in their home so that they have recourse in the event of damage or theft, the instruction is lawful. If the seller is requesting names to verify the person is a bona fide prospective buyer rather than a nosy neighbor or ex spouse, for example, an alternative may be to suggest requesting a pre-qualification letter prior to showings.

That makes sense, and that’s a great suggestion about the pre-qual letter.  It would be a healthy conversation where the agent could also share with the seller if this request would be a disadvantage to them as well, so they are making an informed decision.  For instance, if buyer’s agents are reluctant to provide names (and why) the seller should know that there could be ramifications they didn’t consider.  And on the buying side, the agent shouldn’t be refusing any request without speaking with their buyer client and following their lead.

Exactly.

At times, when an agent takes a new listing, their seller explains that they don’t want a specific person or list of people in their home.  Does the seller have a right to prohibit a specific person from viewing their home? (most cases this is a divorce, bad breakup, or nosy neighbors) This is not referring to a public open house, only arranged showings.

Catherine’s ANSWER: As with the previous answer, as long as the restriction is coming from the seller and is not discriminatory, the seller may limit who has access to their home.

Good to know that the seller has some rights about entry into their home.  So now a sensitive question – in the MLS and the Code of Ethics, we know that REALTORS agree to cooperate with each other unless it is not in the seller’s best interest.  How should a listing broker proceed if the individual the seller wants to prohibit entry is a REALTOR?  Does the seller have a right to instruct the seller’s agent to exclude a specific Realtor from entry into a home, or participating in a sale or receiving compensation? (in this case a seller and Realtor were involved in a past transaction that went bad)

Catherine’s ANSWER: Again, as long as the restriction is coming from the seller and is not discriminatory, the seller may limit who has access to their home. If it is only a specific agent, and not a whole office that is being excluded, the listing broker may want to contact the other broker[Participant / DR] with an offer to cooperate with other agents in the office or pay a referral fee in lieu of giving access.

That does align with our MLS rules as well.  In the unlikely case where an entire office is excluded, the MLS rules say that listing broker must inform the other broker in writing in advance of submitting an offer. This way, alternative arrangements can be made, like you suggested.

Thanks again for taking the time to offer this legal guidance. Great information.

My pleasure, I’m happy to help.  Members can contact me via the Legal Hotline as well for any additional questions. 

Members may access the Legal Hotline by calling 800-370-LEGAL (5342) or sending an e-mail.

The MAR Legal Hotline offers authorized callers access to staff attorneys who can assist members with questions about current state and federal laws and regulations, permissible business practices, and important court rulings affecting real estate practitioners.  To take advantage of the Legal Hotline service, a member’s designated broker must first complete and sign an Authorization Form and return to the MAR Legal Department.  Once approved as an authorized caller, MAR members may access the Hotline. The hours of operation are Monday-Friday, from 9 a.m. to 4 p.m.