Unauthorized Access to Property – Complaint Filed. Was the Wrong Article Used?

ORLANDO, Fla. — Dear Shannon: I’m a very disappointed seller because my listing broker had a family birthday party at my vacant home without my permission. Nothing was broken or damaged and really no harm was done to the property that I can see. But I was surprised when a neighbor called to let me know this was going on. The property is truly a one-of-a-kind place for entertaining. And the kicker is, I probably would have let them use my property for their family gathering if they had just asked me. I digress. Needless to say, I filed an ethics complaint against the listing broker for violating Article 3 as interpreted by Standard of Practice 3-9. However, someone at the local Realtor® association said it was the wrong Article. Huh? I’m confused. The listing broker permitted unauthorized access to my vacant property and that sounds exactly like what’s prohibited in Standard of Practice 3-9. I’m okay with amending my complaint to a violation of Article 1, but why does it matter? Thanks for any guidance you can offer here. Disappointed & Confused

Dear Disappointed & Confused: Oh, wow. The poor judgement of your listing broker is very disappointing. And I hear your confusion on the difference between Article 3 and Article 1 in this situation. I’m actually very glad to hear that the local Realtor association provided you with proper guidance early on in the process.

When it comes to unauthorized access to property, the question is whether it’s the listing broker or the buyer’s broker allowing the unauthorized access. Let’s look at both Article 3 and Article 1 as they relate to unauthorized access to property and the applicable Standards of Practice. The language of both SOP 1-16 and 3-9 are similar, but there are notable differences. Consistent application and interpretation of the Code of Ethics is important. If it’s the listing broker, then it’s a violation of Article 1. If it’s the buyer’s broker, then it’s a violation of Article 3.

Let’s look at the language of SOP 3-9 and then SOP 1-16:

Currently, SOP 3-9 states: “Realtors shall not provide access to listed property on terms other than those established by the owner or the seller.”  Before it was amended in 2023, SOP 3-9 stated, “Realtors shall not provide access to listed property on terms other than those established by the owner or the listing broker.”

SOP 3-9 was amended to use “seller” to reinforce that it is the owner or seller who determines access terms for their property. 

But this change in language made it very similar to SOP 1-16, which states: “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.”

So, if the listing broker is the one allowing unauthorized access to property, how do we know which Article is being violated? 

To determine this, look to the Articles themselves for guidance, remembering that the SOPs flow from the Articles.

• Article 1 states: “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.”  Article 1 focuses on protecting and promoting the interests of clients. So, an agent of the seller allowing unauthorized access to their seller’s property would be a violation of Article 1, as supported by SOP 1-16.
• Article 3 states: “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.” Article 3 deals with a Realtor’s ethical duties when cooperating with other brokers. If a buyer’s broker permitted unauthorized access to listed property, then this would be a violation of Article 3, as supported by SOP 3-9.

Thank you for stepping up to hold members of our Realtor family accountable when they exercise poor judgement. I’m sure it will be an education for the listing broker and behavior that won’t be repeated. Also thank you for being willing to listen to the sage guidance of the local Realtor association on amending your complaint to the proper Article. Consistent application and interpretation of the Code of Ethics is important.

For more information, read NAR’s code comprehension resource: Article 1 & Article 3: Unauthorized Access to Property, SOP 1-16 and 3-9. Other laws and rules may apply.

Shannon Allen, RCE, is an attorney and Florida Realtors®' Director of Local Association Services

Note: Advice deemed accurate on date of publication

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