BROKER'S TEN COMMANDMENTS
By: Lee Dresie, Esq.
The following is not meant to repeat or summarize a broker’s ethical or statutory obligations. Instead, I have drawn on my 20-plus years of handling real estate brokerage disputes to provide what is designed to help with two important goals: (1) Most importantly, avoidance of disputes, and (2) If disputes arise, maximizing your likelihood of prevailing. With that in mind, here are my Brokers’ Ten Commandments:
- Clarify who you are representing. Brokers are one of the few, professionals who can represent both sides in a transaction. If you represent both sides, make sure to use an appropriate dual agency form. Be doubly careful to follow the ethical rules allowing you to represent both sides. Don’t give either client the feeling that you are not keeping their interests paramount. Similarly, make it clear to all involved whether you are representing the partner or the partnership, the principal or the company. Finally, if you are representing only one side of a transaction, do not give professional advice to the other side – even if the other broker appears less than competent.
- Remember who you are representing. While you are working for your firm, you represent your client. This means zealously accounting for your client’s interests. Always keep the client’s interest above a desire for the deal to close and your firm to earn a commission – even if it means that the deal does not close because of advice you give or problems you point out.
- Get it in writing. If you can’t get a written brokerage agreement and want to proceed anyway, memorialize the promises that you will be taken care of with friendly “CYA” letters. A CYA letter often can help do exactly that.
- Save Drafts. Save fax transmittal sheets and e-mails. Take and save notes of important conversations. While there is a tendency to want to clean out files once a deal is completed, your files can be helpful to both you and your client. The files can reflect your competent handling of the transaction and sage advice to your client. Fax confirmation sheets and email printouts can also reflect when things happened, and offer proof of the other party’s actual receipt of key documents and information – including actual delivery of all material information concerning the property.
- Know when to seek legal assistance. Not all transactions require legal assistance. However, if you begin to wonder if legal advice will be helpful, it probably will be.
- Act as a broker, not as a lawyer, land use expert or environmental consultant. One sure way to invite, or “court,” trouble is to advise a client that “the (100 page) environmental report looks okay to me.” (See No. 5.)
- Clarify your obligations with your client. Many problems arise when the client is unclear (or claims to be unclear) of a broker’s duties. One example is when a landlord client blames a broker for not properly examining the financial abilities of a now deadbeat tenant. While most landlords recognize that it is not the broker’s responsibility to approve or disapprove of a potential tenant, not all do. Clarify in writing that it is the client’s decision whether to go forward with the transaction, not yours. Nonetheless, if you begin to have concerns about a potential participant in any transaction, remember Rule #2, and so advise your client.
- Accurately Document the Deal. Prior to closing any transaction, do a careful read-through of all negotiated or non-standard terms. Have a colleague not involved in the transaction review the final documents. If your colleague has questions about what something means, see Rule #9.
- Remove ambiguities in documents. Use plain English to set forth each party’s rights and obligations. The use of a specific example can clarify what occurs when something happens: “If the base rent is $100 per month, and there is a 5% CPI increase, the new rent will be $105 per month.” “If Party A gives notice on June 1, Party B’s response is due on or before June 15.”
- Honor your professional obligations. These are summarized in the AIR “Rules of Professional Conduct”. These rules, which basically require you to do the right thing, prohibit dishonoring the professional by doing things like trying to cut another broker out of a transaction or interfering with another broker’s relationship with a client. Any possible short term gain will be vastly outweighed by the long term effects on reputation and business opportunities.
Lee Dresie is an attorney at Greenberg Glusker (www.GreenbergGlusker.com), where he specializes in real estate litigation. To get the full bio or to contact Lee Dresie please visit this site www.greenbergglusker.com/people/attorneys/Dresie