Best of the Hotline: The Top Gun Agent

By Douglas G. Fogle, Esquire

A recent hotline caller presented an interesting dilemma. An agent sees a property listed on the local MLS and decides to drive to the property.

Seems innocent enough, right? However, without intent to view the property for a potential buyer, the agent decides to park his car in the garage and go hunting in the woods behind the house. Upon returning from his hunt, the agent inexplicably loses his loaded gun on the property. The question raised by the listing agent is whether the hunter committed an ethics violation. As is often the case, there is more to the call than meets the eye (ear?).

The caller’s question is difficult to answer because as hotline attorneys we cannot render peer reviews nor do we decide ethics complaints. That being said, there may be a violation under NAR’s Code of Ethics. Standard of Practice 1-16 provides that "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."

I am aware of no provision of any MLS that provides for agents to use a property as a staging ground for their hunting expedition. It is possible the agent received permission from the owner, but the listing agent/caller did not understand that to be the case. In my office, this call was analogized to agents using listings as places to hold their affairs, which is obviously inappropriate.

As mentioned previously, this call raised a few questions outside of the one the caller asked. First and foremost was whether this needed to be disclosed, which is a more difficult and interesting question. As you all are undoubtedly aware, sellers must disclose a property’s material defects and the listing agent has an obligation to disclose the material defect when they have actual knowledge of it. Typically when we discuss material defects we think of "[a] problem with a residential real property or any portion of it that would have a significant adverse impact on the value of the property." However, a material defect is also a problem "that involves an unreasonable risk to people on the property."

Certainly, a missing and loaded gun involves a risk to people on the property. A young child is particularly vulnerable. An untrained adult could likewise hurt themselves with the gun. The definition of material defect requires that the risk be unreasonable. Whether or not the risk is unreasonable is a question left for a jury to decide. In this case, I don’t know whether a jury would find that the missing gun posed an unreasonable risk to people on the property. The prudent Realtor® errs on the side of disclosure.

Lastly, your seller may have a lawsuit against the agent for trespass. Obviously, the best thing for the caller to do here is to refer the seller to an attorney. While the conduct may appear wrongful, whether it is compensable at law or worth the expense is a question best left to an attorney.