Dear Barry: As a real estate instructor, I teach many programs on ethics and disclosure to agents and people preparing to become agents. These same subjects are often addressed in your column. From your perspective, what can we Realtors do to enhance our ethical approach to real estate disclosure?  Janice

Dear Janice: Realtors are often advised, in seminars and trade journals, to disclose defects and recommend home inspections to clients. The reason given for this advice is to reduce liability and avoid lawsuits. That recommendation has merit, but it offers a narrow view of the issue. Reduced liability is a fringe benefit of disclosure. It is not the primary motive to disclose.

The best reason to disclose property defects is simple: It is the right thing to do. It is the way each of us wants to be treated in business. The focus, instead of liability, should be promoting the best interests of clients. Agents who pursue that approach, rather than a legalistic one, enjoy three primary rewards: They build a lifetime reputation for honest, ethical business practice; they receive the repeat business and referrals engendered by a solid gold reputation; and they reduce the likelihood of claims and lawsuits for undisclosed defects. From that perspective, here are some simple ways to put this into practice.

Agents should determine which home inspectors are the most experienced and most thorough, and they should provide a list of those inspectors to all of their clients. Articles and seminars often advise agents to provide inspector lists as a way to avoid liability, but the competence of the inspectors who appear on such lists is rarely mentioned. The problem here is obvious. If the list contains mediocre inspectors, then it fails on the ethics scale, while increasing the agent’s liability. If the client chooses an inexperienced home inspector from the agent’s list, disclosure will be incomplete, and disputes may occur after the sale.

Real estate brokers should be proactive about disclosure, even when they are not directly involved in transactions. Many brokers are laissez faire in their approach, uninvolved in the home inspector choices made by agents. This lack of oversight increases a broker’s liability. When a lawsuit for a faulty home inspection is filed against an agent, the broker is usually named in the suit. To avoid this liability, brokers should influence the inspector referrals made by their agents. The message should be, “This brokerage cannot afford disclosure related lawsuits. If you work for this company, you must recommend only the most thorough home inspectors available. Here is the list of inspectors we have found to be the most qualified.”

Brokers who wish to maximize this approach can test local inspectors to see who qualifies for the referral list. Inspectors can be hired to inspect a representative home, and the findings can be compared to see which inspectors provide the most complete disclosure.

Real estate professionals are in a service business. Success in any service business comes from treating customers the way you want to be treated. Homebuyers want to know what they are buying before they buy it, not after the sale is closed. Agents and brokers who approach their profession from this perspective will build reservoirs of repeat business for years to come and will simultaneously reduce their liability.

Dear Barry: Our Realtor has been showing us listings for several weeks. But last week, we found a for-sale-by-owner property and made an offer to the owner without calling our agent. Since our Realtor spent so much time trying to find a house for us, are we obligated to involve him in this purchase?  Rob

Dear Rob: This type of situation is a sore spot with many real estate professionals. Your Realtor devoted many hours to your search for a home and now will receive nothing for those efforts. Unless you have a contract with him, you are under no obligation. However, most agents feel that the time and effort they spend showing property to a prospective client warrants some loyalty.

The seller in this case is clearly under no obligation to pay a real estate commission, nor is it likely that he would be willing to pay one. So there’s probably no way to involve your Realtor in the current transaction.

The most fair and respectful way to have handled this situation would have been to inform your Realtor of your interest in the property, rather than contacting the seller directly. The Realtor could then have called the seller and said, “I have clients who are interested in your home. Would you be willing to pay a reduced commission if I bring you an offer?” At that point, the seller could have accepted or declined. If he had declined, you would have been free to make your own offer, without misgivings between you and your agent.

At this point, you can choose whether or not to inform your Realtor of the decision you have made. Expressing your concern and extending your apologies would probably be more respectful than to say nothing at all.

Dear Barry: As editor of a paper that publishes your column, I’ve received complaints from real estate advertisers who find the tone of your articles to be anti-Realtor. After reviewing some recent columns, I tend to agree with them. When recurrent articles deal with unscrupulous real estate agents, a negative theme and negative perceptions can form. The tone of such articles creates an “us vs. them” mentality that isn’t good for anyone involved. I realize there are bad agents out there, just as there are bad inspectors, and you have written about both. But I think you should touch on other topics for variety. Readers would be better served if, for example, you would address the item-by-item details of a home inspection.  Mark

Dear Mark: Let me begin by praising the numerous first class real estate agents with whom I am personally acquainted. There are many outstanding Realtors who bring credit and good repute to the real estate profession — hard working agents who truly represent the best interests of their clients; who conduct their work with the highest ethical standards; who truly deserve every dollar of the commissions they earn.

The intent of this column has never been “us-versus-them”; nor has it been to paint real estate professionals with a broad brush, either positive or negative. As you say, there are good and bad agents out there, just as there are good and bad home inspectors; just as there are good and bad members of every profession.

The content of this column is largely dictated by questions and comments from readers, and many of these involve grievances against Realtors and home inspectors. If human nature tended toward praise rather than complaint, I would probably hear from more people who were satisfied with the top-notch agents and inspectors who have served them. Instead, I receive consumer complaints involving very real problems. The purpose of this column is to address those issues from an honest and unbiased perspective; to educate buyers, sellers, agents, and others about the pitfalls of real estate disclosure and best ways to deal with property defects.

In the years from 1996 through 2005, the real estate market thrived throughout most of the United States, and this booming activity caused many people to enter the real estate and home inspection professions. As a result, there were many inexperienced home inspectors, with little ability to provide homebuyers with adequate disclosure. Unfortunately, these novice inspectors obtained referrals from misguided real estate agents, and unsuspecting homebuyers made bad purchase decisions on the basis of faulty inspection reports.

Some of the agents who referred those inspectors were novices themselves, unaware of the vast quality differences among home inspectors. At the same time, there were experienced agents who should have known better, but who failed to exercise ethical discretion when referring home inspectors to their clients.

So what is the solution?

Leaders in the real estate profession, including brokers and Realtor associations, need to provide agents with better clarity regarding disclosure. This emphasis should be two-fold. First is the matter of ethics: Buyers should be fully informed of property defects because total disclosure is the only honest way to do business. It is the way that everyone wants to be treated. Second is the matter of legal liability: Faulty disclosure exposes agents and sellers to potential lawsuits. If the altruism of ethical disclosure is not sufficient cause, then the need to avoid litigation should be. For either reason or for both reasons, disclosure of property defects is good for everyone.

Agents should become familiar with the best home inspectors in their areas of business and should only recommend those inspectors. Many good agents have made this a practice throughout their careers. When other agents follow that good example, consumer complaints will cease to fill my inbox, and articles that offend agents will no longer be necessary.

Dear Barry: We purchased our home 1 1/2 years ago, and our home inspector missed a number of problems. These include rotten eave boards, a bad roof, a rusted water heater, garage door openers not equipped with safety eyes, rotted window frames, an unvented kitchen stovetop, a broken vent on the furnace, and the list goes on. We trusted him because he was recommended by our Realtor. Do we have any recourse? Sandra

Dear Sandra: The first step in the process of recourse is to notify the home inspector and the agent that these problems were not disclosed. You should invite them to your home for a review of these issues. And be sure to do this before making any repairs because corrected problems are not as negotiable as existing ones. Be aware also that not all of the issues you listed are within the scope of a home inspection and some may not involve actual defects. Here are some examples:

• Rotting wood at the eaves and windows may or may not be included in the scope of the inspection. You should check the inspection contract in that regard. Termite inspectors are the ones who typically inspect for rotted wood.
• Older garage door openers were not required to have safety eyes.
• In most states, venting is not required at a kitchen range.

On the other hand, the rusted water heater, the broken furnace vent, and the faulty roof should have been disclosed by the inspector if the problems were visible at the time of the inspection.

It is an unfortunate reality of the real estate business that some agents cannot be trusted to recommend the best home inspectors. This does not apply to all agents, but it does apply to some. Therefore, your agent should be asked, “Was this the most thorough and experienced home inspector you know?” In most cases, agents know which inspectors are the best. If you can get the name of a “top gun” home inspector in your area, a second inspection would be advisable. This may alert you to additional problems that may have been missed by the agent’s inspector.

Dear Barry: In a recent article, you stated that it was an agent’s responsibility to recommend a home inspector. I argue that such a recommendation is a clear conflict of interest. The agent’s interest is in closing the sale and getting a commission check. The home inspector’s interest is in future referrals from the agent. No matter how you cut it, that kind of relationship compromises a home inspector’s integrity. I’ve had two bad experiences with home inspectors who were recommended by real estate agents, and that has taught me to shop for my own inspector. That’s the kind of advice you should be giving your readers. Al

Dear Al: The article you refer to involved an agent who advised her buyers not to hire a home inspector. The subject of that column was to condemn that kind of unethical practice. The point was not that an agent should “recommend a home inspector,” but that agents should advise every buyer to have a home inspection.

A repeated subject of this column has been the complex issue of inspector referrals by agents and brokers. Some articles have discussed agents who advise against having home inspections, while others have shined the spotlight on those who refer marginally qualified inspectors to their clients. The referral relationship between agents and home inspectors is not what compromises an inspector’s integrity. Referrals merely test the integrity that an inspector may or may not inherently possess. Inspectors who skew the findings of reports to promote future referrals are condemned by their own lack of common decency, not by the conflict of interest posed by real estate agents. Home inspectors with well-founded values serve the interests of homebuyers, not the pressures imposed by agents.

These same ethical standards for disclosure can be applied to agents and brokers. Those who are truly honest and ethical promote full disclosure and recommend the most qualified inspectors. Those who lack these values betray the interests of their clients by recommending unqualified inspectors or by convincing their clients to forego an inspection; all for the sake of a commission check.

In the real estate marketplace where I do business, there are sufficient numbers of ethical agents to fill the schedule of an honest and meticulous home inspector (most of the time). Whether this is true everywhere is difficult to say. But the bottom line is this: Any home inspector who abbreviates the thoroughness or accuracy of an inspection report for the sake of agent referrals has essentially stolen the money of the homebuyers who paid for the inspection. Likewise, any agent who advises against having an inspection, or who recommends marginally qualified home inspectors, or who labels the best inspectors as “deal killers,” is no better than a bar room grifter in professional clothing.

The practice of uncompromised defect disclosure is the ethical heart and soul of real estate related professions. It measures equally the moral worth of agents, brokers, and home inspectors. Anyone who devalues that practice should do some serious soul searching or should simply find another line of work.