REALTOR® Associations are responsible for enforcing the REALTOR® Code of Ethics. The Code of Ethics imposes duties above and beyond those imposed by law or regulation and apply only to real estate professionals who choose to become REALTORS®. In order to find out whether and how you can file a complaint against a REALTOR®, continue reading.
If you have a complaint about a REALTOR®, read through these steps:
STEP ONE. Talk to your agent or broker.If you have a problem with a real estate professional, you may want to speak with them directly or with a principal broker or manager in the agent's firm. Many difficulties between real estate professionals (whether REALTORS® or not) and their clients result from misunderstanding, miscommunication, or lack of adequate communication. Open, constructive discussion often resolves questions or differences, eliminating the need for further action. (If you aren't sure who your agent's broker or manager is, call the agent's office number to inquire or call BBOR at (304) 252-8366.
STEP TWO. Call the REALTOR® Association.If you are still not satisfied, you may want to contact the West Virginia Association of REALTORS®. The Association has informal dispute resolving processes available to consumers (e.g., ombudsmen, mediation, etc.) that can be utilized prior to filing a formal complaint.
STEP THREE. What's involved?If, after taking these steps, you still feel you have a complaint, you may want to consider filing a formal 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 his or her broker) you are dealing with is not a REALTOR®, options may include contacting the West Virginia Real Estate Commission.
- The Association of REALTORS® determines 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.
- REALTOR® Associations 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. Associations of REALTORS® cannot 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, suspension, termination of membership may be imposed for serious or repeated violations.
- At this point, all parties to the complaint will be given the opportunity to mediate the complaint.
STEP FOUR. Filing the Ethics Complaint.The West Virginia Association of REALTORS® administers the complaint process for all local associations and can help you through the process. You can obtain the forms and guidance by calling directly at (304)342-7600.
Here are some general principles to keep in mind as you begin the process:
- Ethics complaints must be filed with the appropriate REALTOR® association 180 days from the time a complainant knew (or reasonably could have known) that potentially unethical conduct took place.
- The REALTOR® 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. Please be as specific as possible about the actions that the REALTOR® took or did not take that you believe were unethical.
- Your complaint must cite one or more of the Articles of the Code of Ethics that may have been violated by the actions (or inactions) you have identified as potentially unethical. Hearing Panels decide whether the Articles expressly cited in complaints were violated—not whether Standards of Practice or case interpretations were violated.
STEP FIVE. Initial ReviewYour complaint will be reviewed by the 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. Before you actually file the complaint, 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 by the Hearing Panel to have occurred, 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 an appeal panel of the association.
STEP SIX. Preparing for the Hearing If the Grievance Committee forwards your case for a hearing, you'll want to 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 "dear, 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.
- 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.
STEP SEVEN. 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 to determine whether the facts as they find them support a finding that the Article(s) charged has 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.
STEP EIGHT. After the HearingYou will receive the Hearing Panel's decision in the mail. When you receive the 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 association for detailed information on the bases and time limits for appealing a decision or requesting a rehearing.
- Rehearings are generally granted only when newly-discovered evidence comes to light that
(a) could not reasonably have been discovered and produced at the original hearing and
(b) that may 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.
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 association of REALTORS® can give you the procedures and forms necessary to file an ethics complaint.