Boards and associations of REALTORS® are
responsible for enforcing the
REALTOR® Code of Ethics. The Code imposes duties
above and in addition to those imposed by
law or regulation which apply only to real
estate professionals who choose to become
REALTORS®.
Many difficulties between real estate
professionals (whether REALTORS® or not)
result from misunderstanding,
miscommunication, or lack of adequate
communication. If you have a problem with a
real estate professional, you may want to
speak with him/her or with a principal
broker in the firm. Open, constructive
discussion often resolves questions or
differences, eliminating the need for
further action.
If, after discussing matters with your real
estate professional or a principal broker in
that firm, you are still not satisfied, you
may want to contact the
local board/association of REALTORS®. Many boards and
associations have informal dispute resolving
processes available to consumers (e.g.,
ombudsmen, mediation, etc.).
If, after taking these steps, you still
feel you have a grievance, you may want to
consider filing an ethics complaint. You
will want to keep in mind that:
Only REALTORS® and REALTOR-ASSOCIATE®s are
subject to the
Code of Ethics of the
NATIONAL ASSOCIATION OF REALTORS®.
If the real estate professional (or the
broker of record for his/her firm) you are
dealing with is not a REALTOR®, your only
recourse may be to file a complaint with the
New Jersey Real Estate Commission.
Boards and associations of REALTORS®
determine whether the Code of Ethics has
been violated, not whether the law or real
estate regulations have been broken. Those
decisions can only be made by the licensing
authorities or the courts.
Boards of REALTORS® can discipline
REALTORS® for violating the Code of Ethics.
Typical forms of discipline include
attendance at courses and seminars designed
to increase REALTORS®' understanding of the
ethical duties or other responsibilities of
real estate professionals. REALTORS® may
also be reprimanded, fined, or their
membership can be suspended or terminated
for serious or repeated violations. Boards
and associations of REALTORS® cannot require
REALTORS® to pay money to parties filing
ethics complaints; can-not award "punitive
damages" for violations of the Code of
Ethics; and cannot suspend or revoke a real
estate professional's license.
The primary emphasis of discipline for
ethical lapses is educational, to create a
heightened awareness of and appreciation for
the duties the Code imposes. At the same
time, more severe forms of discipline,
including fines and suspension and
termination of membership may be imposed for
serious or repeated violations.
Filing an Ethics Complaint
The local board/association of
REALTORS® can provide you with information
on the procedures for filing an ethics
complaint. Here are some general principles
to keep in mind.
Ethics complaints must be filed with the
local board/association of REALTORS®
within one hundred eighty (180) days from
the time a complainant knew (or reasonably
should have known) that potentially
unethical conduct took place (unless the
board/association's informal dispute
resolution processes are invoked in which
case the filing deadline will momentarily be
suspended).
The REALTORS®Code of Ethics consists of
seventeen (17) Articles. The duties imposed
by many of the Articles are explained and
illustrated through accompanying Standards
of Practice or case interpretations.
Your complaint should include a narrative
description of the circumstances that lead
you to believe the Code of Ethics may have
been violated.
Your complaint must cite one or more of
the Articles of the Code of Ethics which may
have been violated. Hearing Panels decide
whether the Articles expressly cited in
complaints were violated-not whether
Standards of Practice or case
interpretations were violated.
The local board or associations of
REALTORS®' Grievance Committee may provide
technical assistance in preparing a
complaint in proper form and with proper
content.
Before the Hearing
Your complaint will be reviewed by the
local board or association's Grievance
Committee. Their job is to review complaints
to determine if the allegations made, if
taken as true, might support a violation of
the Article(s) cited in the complaint.
If the Grievance Committee dismisses your
complaint, it does not mean they do not
believe you. Rather, it means that they do
not feel that your allegations would support
a Hearing Panel's conclusion that the
Article(s) cited in your complaint had been
violated. You may want to review your
complaint to see if you cited an Article
appropriate to your allegations.
If the Grievance Committee forwards your
complaint for hearing, that does not mean
they have decided the Code of Ethics has
been violated. Rather, it means they feel
that if what you allege in your complaint is
found to have occurred by the Hearing Panel,
that panel may have reason to find that a
violation of the Code of Ethics occurred.
If your complaint is dismissed as not
requiring a hearing, you can appeal that
dismissal to the Board of Directors of the
local board or association of REALTORS®.
Preparing for the Hearing
Familiarize yourself with the hearing
procedures that will be followed. In
particular you will want to know about
challenging potential panel members, your
right to counsel, calling witnesses, and the
burdens and standards of proof that apply.
Complainants have the ultimate
responsibility ("burden") of proving that
the Code of Ethics has been violated. The
standard of proof that must be met is
"clear, strong and convincing," defined as
"...that measure or degree of proof which will
produce a firm belief or conviction as to
the allegations sought to be established."
Consistent with American jurisprudence,
respondents are considered innocent unless
proven to have violated the Code of Ethics.
Be sure that your witnesses and counsel
will be available on the day of the hearing.
Continuances are a privilege-not a right.
Be sure you have all the documents and
other evidence you need to present your
case.
Organize your presentation in advance.
Know what you are going to say and be
prepared to demonstrate what happened and
how you believe the Code of Ethics was
violated.
At the Hearing
Appreciate that panel members are unpaid
volunteers giving their time as an act of
public service. Their objective is to be
fair, unbiased, and impartial; to determine,
based on the evidence and testimony
presented to them, what actually occurred;
and then to determine whether the facts as
they find them support a finding that the
Article(s) charged have been violated.
Hearing Panels cannot conclude that an
Article of the Code has been violated unless
that Article(s) is specifically cited in the
complaint.
Keep your presentation concise, factual,
and to the point. Your task is to
demonstrate what happened (or what should
have happened but did not), and how the
facts support a violation of the Article(s)
charged in the complaint.
Hearing Panels base their decisions on the
evidence and testimony presented during the
hearing. If you have information relevant to
the issue(s) under consideration, be sure to
bring it up during your presentation.
Recognize that different people can
witness the same event and have differing
recollections about what they saw. The fact
that a respondent or their witness recalls
things differently does not mean they are
not telling the truth as they recall events.
It is up to the Hearing Panel, in the
findings of fact that will be part of their
decision, to determine what actually
happened.
The Hearing Panel will pay careful
attention to what you say and how you say
it. An implausible account does not become
more believable through repetition or
through volume.
You are involved in an adversarial process
that is, to some degree, unavoidably
confrontational. Many violations of the Code
of Ethics result from misunderstanding or
lack of awareness of ethical duties by
otherwise well-meaning, responsible real
estate professionals. An ethics complaint
has potential to be viewed as an attack on a
respondent's integrity and professionalism.
For the enforcement process to function
properly, it is imperative for all parties,
witnesses, and panel members to maintain
appropriate decorum.
After the Hearing
When you receive the Hearing Panel's
decision, review it carefully.
Findings of fact are the conclusions of
impartial panel members based on their
reasoned assessment of all of the evidence
and testimony presented during the hearing.
Findings of fact are not appealable.
If you believe the hearing process was
seriously flawed to the extent you were
denied a full and fair hearing, there are
appellate procedures that can be invoked.
The fact that a Hearing Panel found no
violation is not appealable.
Refer to the procedures used by the local
board or association of REALTORS® for
detailed information on the bases and time
limits for appealing decisions or requesting
a rehearing. Rehearings are generally
granted only when newly discovered evidence
comes to light
(a) which could not reasonably have been
discovered and produced at the original
hearing and
(b) which might have had a bearing on the
Hearing Panel's decision. Appeals brought by
ethics respondents must be based on
(a) a perceived misapplication or
misinterpretation of one or more Articles of
the Code of Ethics,
(b) a procedural deficiency or failure of
due process, or
(c) the nature or gravity of the discipline
proposed by the Hearing Panel. Appeals
brought by ethics complainants are limited
to procedural deficiencies or failure of due
process that may have prevented a full and
fair hearing.
Conclusion
Many ethics complaints result from misunderstanding or a failure in communication. Before filing an ethics complaint, make reasonable efforts to communicate with your real estate professional or a principal broker in the firm. If these efforts are not fruitful, the local board/association of REALTORS® can give you the procedures and forms necessary to file an ethics complaint.
