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Legally speaking: Is it ever OK to let a buyer, inspector in a listing without you?

By Peg Ritenour, OAR Vice President of Legal Services/Administration

The OAR Legal Assistance Hotline receives an array of real estate-related legal questions — including license law issues, disclosure, contract law, ethics and commission problems, among others. In an effort to help you work within the law, our “Legally Speaking” series spotlights some of the timely questions that are being asked by REALTORS. This one involves providing a lock box combination or key to an unauthorized person…

Q: I recently learned that a buyer’s agent gave a lock box code to her buyer to go in my listing without her. The buyer’s agent was unavailable and didn’t see what the “big deal” was because the property was vacant. I had another instance where a buyer’s agent gave the lock box code to the inspector and buyer to enter my listing. When I found out, the buyer’s agent told me he is too busy to spend 2-4 hours at an inspection. He also said a continuing education speaker advised buyers’ agents not to attend inspections. Are these practices acceptable? Isn’t a buyer’s agent required to attend an inspection?

A: It is NEVER OK for an agent to give a buyer, inspector, or any unauthorized person a lock box combination or key!!

First, such a practice is a violation of the MLS rules. Secondly, the Ohio Real Estate Commission has recently disciplined several licensees for allowing a buyer to enter a listing unescorted and without permission. I have also heard of litigation brought by a seller against a buyer’s agent who allowed a buyer into the property alone and without the knowledge of the listing agent or seller.

The only way a buyer, inspector or anyone else should be allowed in a property without an agent is if the seller or listing agent has authorized this. If such permission is granted, this should be documented in your records for your protection. But as stated above, even with such permission, access to the property cannot be given by providing lock box combinations or keys to a buyer or inspector.

As to the issue of attendance at an inspection, there is no specific statutory requirement mandating that a buyer’s agent attend the inspection, although it can certainly be argued that this is part of the agent’s fiduciary duties to the buyer.  I have also heard of instructor’s advising buyer’s agents against this. There are arguments to be made on both sides of this issue. Certainly a buyer’s agent should discuss whether they will attend the inspection with the buyer. If the buyer’s agent won’t be attending the inspection, however, this should be brought to the attention of the listing agent, who in turn should discuss his with the seller.

The bottom line is that sellers have the right to know who is in their property and to control the circumstances under which persons are given access. This is reflected in Standard of Practice 3-9 of the NAR Code of Ethics, which provides that REALTORS shall not provide access to listed property on terms other than those established by the seller or listing agent.

To summarize, to avoid  potential violations of the MLS rules, the Code of Ethics and Ohio license law, as well as potential civil liability, lock box combinations/keys to a property should never be given to any unauthorized persons. Further, buyers, inspectors, etc. should not be allowed in a property unescorted without the consent of the listing agent, who in turn should get the seller’s permission.

Tags: legal, Legally Speaking