Illinois REALTOR® Magazine | April 2014
By Elizabeth A. Urbance | IAR Legal Hotline Attorney; Associate, Sorling Northrup Attorneys
Q: Generally speaking, if a broker uses different social media tools to assist her in her real estate brokerage business, must she comply with the Illinois Real Estate License Act of 2000 (the Act) and the REALTOR® Code of Ethics (the Code), assuming the broker is a REALTOR® member? Then specifically, could the broker post another company’s listings on her Facebook™ page?
A: With regard to the general question, the answer is yes, the broker must comply with the requirements of both the Act and the Code (assuming the broker is a REALTOR®). For example, when advertising a new listing on Facebook™, the broker should keep in mind that her sponsoring brokerage company’s name must appear on the “ad” that is being posted. When “tweeting” about the new listing, the question is whether the brokerage company name needs to be included in the 140 characters allowed for the “tweet.” While the Code has a provision [Article 12, Standard of Practice 12-5] that excuses the use of the firm name in a “thumbnail” or “tweet” so long as the message is linked to a page containing the firm name, the Act has no such exception. We don’t have any specific guidance from the Illinois Department of Financial and Professional Regulation (IDFPR) but if space is extremely limited, and the consumer is only one click away from complete information (including the brokerage company name), there is at least an argument that this would comply with the Act.
With regard to posting someone else’s listing on Facebook™ or some other third party website, the broker could not display another company’s listings without the listing broker’s written consent. In addition, once the non-listing broker has consent, she would need to identify the listing company within the ad/posting, and the content must not be false, deceptive or misleading in any way. See Section 10-30 of the Act. One way brokers give each other consent to post listings is through a Multiple Listing Service (MLS) Internet Data Exchange (IDX) Policy. The MLS IDX policy typically provides the ability for participating brokers to give each other blanket consent to share the MLS data feed on their own or their companies’ websites, but would not automatically allow for the data feed to go to third party websites. The broker needs to check her IDX policy to see if the data feed can be posted on a third party website such as Facebook™, but it probably does not allow for listings to be removed piecemeal from the data feed to be copied and shared on other, third party sites. This would be similar to making a paper copy of another company’s listing and running an ad for the other company’s listing in the local newspaper with no consent from the listing broker and no reference to the listing company’s name. The listing company is the entity with the exclusive right to market the property for sale or rent and to control the methods used. The listing company might give another broker the express consent to post the listing, in which case the posting company must include the listing company’s name and the posting company would need to comply with any other conditions placed upon it by the listing company.
Q: Are “pocket” listings illegal?
A: No. Generally speaking, “pocket” listings or “office exclusive” listings are not illegal. The real issue is whether the listing broker is in compliance with the MLS rules and regulations and the REALTOR® Code of Ethics. The listing broker will need written direction from the seller directing the listing broker to keep the listing out of the MLS. Without such a “waiver,” the listing broker would have a duty to submit the listing to the MLS according to the MLS rules. In addition, the MLS may provide for a particular form of waiver or require that the waiver include certain disclosures.
There would need to be other factors present before a “pocket” listing could be declared “illegal.” For instance, if the seller’s motivation in keeping the listing out of the MLS is to avoid selling the property to a buyer who is a member of a protected class; this is clearly illegal and impermissible. The listing office must not accept that “pocket” listing.
In addition, the sponsored licensee in a real estate brokerage company should check their individual company policy on this question. Brokerage companies are free to create their own policies on what sorts of listings they will accept.
Q: What do I need to be concerned about with regard to the new Illinois concealed carry law as it relates to my real estate brokerage practice?
A: That is a good question. You will need to know what your own office policy is and whether your sponsoring brokerage company allows concealed carry within your office. If so, the person who possesses a valid concealed carry license could bring his or her gun into your office so long as it is being carried according to the statutes in a partially or fully concealed manner. On the other hand, if your office has adopted a no concealed carry policy, then the office entrance needs to have a 4”X 6” sign that indicates the no concealed carry policy. The sign is available at the Illinois State Police website [https://ccl4illinois.com/ccw/Public/CCWProhibitedAreaSign.pdf]. Check with your managing broker as to your office policy.
With regard to your seller/landlord clients, you should find out what their policy is with regard to showings and open houses. While homeowners are not required to post the no concealed carry sign even if they have a no concealed carry policy, prudence might dictate that the owner post a sign for showings or open houses so that it is clear that any prospect must store his weapon elsewhere and not bring it with him into the property.
Finally, you should consider what your personal policy is with regard to your own vehicle. For example, you need to determine whether you will allow a consumer who might be riding in your car to carry a concealed weapon or not.
This topic was covered in the Feb. 27, 2014, IAR Legal Webinar, “Concealed Carry and the Real Estate Brokerage,” available for download to IAR members at www.illinoisrealtor.org/legal/webinars