SOP 3-9: Why Change ‘Listing Broker’ to ‘Seller’?

ORLANDO, Fla. – Dear Shannon: SOP 3-9 (Standard of Practice) was amended and the word “listing broker” was replaced with the word “seller.” I’m a cooperating broker and built my business around representing buyers. Does this mean I can contact the seller directly for showing instructions?

Your last article (Why am I in Violation if Everybody Does It?), was shocking – the one where the listing broker permitted access to a listed property on terms other than those authorized by the seller. Yikes! Now that’s got me comparing SOP 1-16 with the change to SOP 3-9. Doesn’t this SOP 3-9 change mean that the listing broker is now in violation of both Article 1, as interpreted by SOP 1-16, and also Article 3, as interpreted by the amended SOP 3-9? So, a violation of both Article 1 and Article 3? Your previous article only mentioned a violation of Article 1. And same question for a cooperating broker: If they permit access to listed property on terms other than those authorized by the seller, wouldn’t that be a violation of both Article 1 and Article 3? – Seeking Clarity

Dear Seeking Clarity: Thank you so much for reaching out on this. You are correct, the amendment to Standard of Practice 3-9 replaced the words “listing broker” with the word “seller.” And this amendment became effective on Jan. 1, 2023.

The amended Standard of Practice 3-9 states: Realtors® shall not provide access to listed property on terms other than those established by the owner or the seller. (Adopted 1/10, Amended 1/23)

The answer to your first question is “no,” the amendment to SOP 3-9 does NOT mean that cooperating brokers can contact the seller directly for showing instructions.

Contacting the seller directly regarding showing instructions could be a potential issue under Article 16, which states Realtors® shall not engage in any practice or take any action inconsistent with exclusive representation or exclusive brokerage relationship agreements that other Realtors® have with clients. (Amended 1/04). The intent of the amendment to SOP 3-9 was simply to reinforce the already existing concept that the seller (not the listing broker) is the one who is in charge of establishing terms by which their listed property may be accessed.

As to your other questions, if both the listing broker and the cooperating broker permitted access to listed property on terms other than those authorized by the seller, then a violation of Article 1, in this narrow discussion, is the better Article for the listing broker; and Article 3, again in this narrow discussion, is the better Article for the cooperating broker. I’m glad reading my previous article has you thinking about SOP 1-16 and SOP 3-9. Let’s take a look together:

• SOP 1-16 says: Realtors® shall not access or use, or permit or enable others to access or use, listed or managed property on terms or conditions other than those authorized by the owner or seller. (Adopted 1/12)
• SOP 3-9 says: Realtors® shall not provide access to listed property on terms other than those established by the owner or the seller. (Adopted 1/10, Amended 1/23)

Notice the language is similar but not identical. SOP 1-16 leans more toward the listing side and SOP 3-9 leans more toward the selling (or cooperating broker) side.

To interpret and support the Code, the Professional Standards Committee of the National Association of Realtors® adopted Standards of Practice which are “interpretations” of the Code. As such, Standards of Practice apply the Code of Ethic’s principles to specific conduct in specific circumstances.

While Standards of Practice 1-16 and 3-9 sound similar, they actually interpret very different Articles. These two Standards of Practice serve to clarify the ethical obligations imposed by Article 1 and Article 3, respectively. Now let’s look at the language of Articles 1 and Article 3:

• Article 1 says: When representing a buyer, seller, landlord, tenant, or other client as an agent, Realtors® pledge themselves to protect and promote the interests of their client. This obligation to the client is primary, but it does not relieve Realtors® of their obligation to treat all parties honestly. When serving a buyer, seller, landlord, tenant or other party in a non-agency capacity, Realtors® remain obligated to treat all parties honestly. (Amended 1/01)
• Article 3 says: Realtors® shall cooperate with other brokers except when cooperation is not in the client’s best interest. The obligation to cooperate does not include the obligation to share commissions, fees, or to otherwise compensate another broker. (Amended 1/95)

In a nutshell and for our narrow discussion, Article 1 focuses on promoting the interests of the client and Article 3 focuses on cooperating with other brokers.

So, if the listing broker is the one who is accessing or using, or permitting or enabling others to access or use, listed or managed property on terms or conditions other than those authorized by the owner or seller, then, for this narrow discussion, a possible violation of Article 1 (as opposed to Article 3) is the better Article.

And if the cooperating broker is the one who is providing access to listed property on terms other than those established by the owner or the seller, then, again for this narrow discussion, a possible violation of Article 3 (as opposed to Article 1) is the better Article.

In conclusion, this isn’t really a violation of both Article 1 and Article 3, because Article 1 is more appropriate for the listing broker and Article 3 would be more appropriate for the cooperating broker. This does not mean that listing brokers cannot violate Article 3, nor does it mean that cooperating brokers cannot violate Article 1. This simply means that in this narrow set of circumstances there might be a better Article.

Stay tuned for a future article where we compare SOP 16-16 with SOP 3-2.

Shannon Allen is an attorney and Florida Realtors Director of Local Association Services
Note: Advice deemed accurate on date of publication.

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