Dishin' Dirt with Gary Pickren on Grievances and How to Avoid Having Them Filed Against You.

Every real estate agent works in fear of having a grievance filed against them with the Real Estate Commission. Many agents think because they are a good and ethical agent that no one will ever file a grievance against them. That is just plain wrong.  Most of the agents I represent before the Real Estate Commission are top agents in the MLS and are pillars in the real estate community. These are the agents that sit on real estate boards and mentor agents. The truth is any agent can have a grievance filed against them. In this podcast I bring my experience of representing over 50 real estate agents before the real estate commission to explain the grievance process. I also provide you several ways to protect yourself now so if a grievance is filed you will have the ammunition to defend yourself.    

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Gary


* Gary serves on the South Carolina Real Estate Commission as a Commissioner. The opinions expressed herein are his opinions and are not necessarily the opinions of the SC Real Estate Commission. This podcast is not to be considered legal advice. Please consult an attorney in your jurisdiction for applicable legal advice germane to your issue.

Transcript

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This is edition dirt with Gary Pickering, South Carolina's only podcast dedicated to the real estate agents craft. And Greetings, my fellow real estate nerds and welcome to yet another episode of deshon dirt. I am your somewhat talented host, Gary Pickering coming to you deep inside the inner workings of the Blair Cato Law Firm. Now we're rolling into spring and just about to start here the month of March and the market is still blistering hot. And perhaps maybe now we're seeing the end of this COVID virus in sight. So we could only be so lucky, we might be able to have an actual enjoyable summer. Let's hope that happens. Now on today's show, we're going to talk about grievances and how easy it is for you to be grieved and some of the strategies that you need to know to protect yourself. And before you push Paul, or turn this off and go well, I'm a great agent, I never get grievances filed against me. Yeah, I hear you. But I can tell you of all the agents I represent. I've represented 50 or 60 agents before the real estate commission, and countless others before the realtor board. Most of them are top agents in the MLS, and most of them are top real estate agents that in town that you know, and that you would consider somebody that you want to model yourself after. So don't fool yourself into believing because you think you do things right that people won't file a grievance against you. Now in addition to that, we're going to also have our multifaceted installment of as I see it, which has a couple of really neat things in it today, as well as Gary's good news. This is News that you will not hear in any of the establishment media. But before we start, don't forget, if you liked this podcast, if you would, please like us, share us and particularly subscribe to us. So you'll know when new episodes are coming out. And if you know any agents outside of our market, please share this with them because we want to spread this message throughout the state of South Carolina so that we can make the real estate profession the best profession out there. Now, last week, our topic was on real estate brokerages and closing attorneys and some of the questionable financial scams that they are doing, where they are trying to basically sell your business that's really hurting you and your growth. It's a great listen to we had wonderful comments and lots of thumbs up on that one. So if you get a chance to listen to that podcast, we'd highly recommend that one. But today what we're going to do is talk about the grievance process. Now some of you know I have represented real estate agencies all over the state of South Carolina, some of these agencies are as small as one or two people all the way up to several 100 agents in multiple locations across the state. And I've really enjoyed doing that. And throughout this process of representing real estate agents over the last 15 to 20 years, I have been able to also represent agents before the real estate commission been over there 50 to 60 Times had cases handled there all the way through trial. I've represented real estate agents at the state association, the local associations also handled mediation for the local Association agents against agents, buyers, against sellers, buyers, against agents, builders, against agents, and handle cases they're in which they are able to hopefully craft their own resolution to their issue. And we've also started working with the Central Carolina realtors association to providing continual education, which we'll talk a little bit about later here. So there are a couple of things that I have learned from my representation of real estate agents before the Commission and the board. And these are truths that I think everybody needs to know. So truth number one is that the people that get grievances filed against them are not new agents, or even necessarily agents that you know, are the agents that you don't want to deal with the agents that you feel like do things the wrong way, typically the agents that I see that get grievances against them, our top real estate agents in the MLS, they are the top agents in the industry, there's their agents that people no respect that have been doing this for 10 1520 years. These are the agents that serve on boards, they are in our associations, they are top agents that people want them mentoring to them. They are instructors or teachers, they are the people that are getting grievances filed against him. And it's not because they're bad agents is oftentimes just because they deal with such a large volume of people, there's always a larger chance that they're going to have grievances against them. So do not fool yourself into thinking that if you're a top agent or a great agent, or no one's ever filed a grievance against you that you won't get one. In fact, most of the times when I have a case, the agents first thing they say is, you know, I've been doing this 20 years and no one's ever filed a case against me was always a first time for it. The second truth you have to understand is that people don't like to accept the fact that things happen. Bad things happen. Sometimes no one's to blame. Sometimes people get bad luck. So when things go bad in a real estate closing, there's typically people wanting to look at you to blame you because they have no one else to blame. I typically blame social media. I like social media and the fact that it's good for marketing, but I can't stand what social media has allowed our society to do. And as Adam Carolla, the comedian says, is that people say things on social media, they would never say to your face, and he says, in fact, when he grew up, if you were to talk that stuff about him, you kick your butt on the playground. Now you can be all the way across the country and say such negative things about people and never have to suffer the ramifications. And that's also true with these rating systems. Now, Blair Cato has well over 405 star ratings from our clients, but the fact is that some client can have the most unreasonable expectations of life. Clients can have the most unreasonable expectations of life have nothing truly incorrect or improper happened in real estate closing. But because they had to wait two extra days to close, for whatever reason, now they want to blast everybody. And so it's very easy on these rating rating systems to give you terrible ratings and say such horrible things about you that aren't even true. And they know they can do so with impunity. And so we are to the point in society where nobody except responsibilities, bad things happen. So I've got to find somebody else to blame. The problem is as a real estate agent, that's what you do for a living, you help people if you don't like to help people, you wouldn't be in real estate. But that is what you do. You're in real estate, partly because you love helping people you love watching people make their goals, complete their goals, and the joy they get from buying their dream house or their first home or their first married home. But because of that very nature of you being friendly, and also being helpful when things go bad, they still look at you to fix those things. And that is kind of what this market is for us. And unfortunately, right now, with COVID people are on edge. And with unemployment and things going on that are bad. When people are on edge, they typically also start looking to you more to fix things, and they're wanting to blame you when things go bad. We know right now that most people do not have enough money to fix a hot water heater, if it goes out in their house. That's how little Americans have say. And so when that hot water heater goes out in the house that you sold, even if had nothing to do with you, they are now looking for a lifeline and they're going to blame you for not telling them it was going to go bad because they have nobody else to pay for it. The next truth you need to understand is the person who is likely to grieve you is not typically that jerk that you've been working with for three months, and you know, they're going to sue you, you feel it, you can tell it everything you do, they're complaining about. Typically, this person is just a bully, and they like to get their way. And they're just trying to bully their way into getting what they want. Know the person that typically follows a grievance against you is that sweet person that you've enjoyed meeting, in fact, you want to go out to eat with them, you may have wanted to go to a ballgame with them. You stayed in touch with them, and you felt like hey, this person is not only a client, but a friend. That's the person that typically grieve you. Because most people when they come to me, after they've had a grievance, they're like, I can't believe this of all people filed a grievance against me, these were the sweetest people in the world, I went out of my way to help them which goes back to truth number two, is because you're helpful, they come back and get you on that. And then truth number four is it is very, very easy to file a grievance against you. In fact, I would argue it's easiest to file a grievance against you, as it is to put a review on Zillow or Facebook or Google, It is that easy. All they have to do is go to the real estate real estate Commission's website, click a button and start typing. And remember everything they say is confidential. And they will not disclose your information or the complaint to you as the agent so they can say what they want to against you with impunity and not have to worry about any backlash. Now another cheat now that you know the simple truth, let's talk about who can file grievances against you and how this works. Well, first of all, anybody can file a grievance against you, period, anybody that has facts about what's going on, can file a grievance, it doesn't have to be an agent doesn't have to be a client doesn't have to be a lender. Anybody that has any information can file a grievance against you. And they can file a grievance against you for violation of any state law, federal law, local law rules or regulation, anything that governs real estate licensees. Now, what you notice I did not say is they cannot file a matter against you for a contractual dispute. So whether it's in the contract of sale, the listing agreement, or the buyer representation agreement, they cannot file a grievance against you for contractual disputes. They also can't file a grievance against you for poor customer service, you're terrible at returning phone calls quickly, you don't give them enough time, you're just generally a bad real estate agent. That's not actionable. Now, if you do something illegal, or violates the law, that's a whole different ballgame. But just the fact that you're slow returning phone calls, you don't really listen very well, or you didn't really do a good job that's not actionable, and that will be dismissed. Other things that aren't included is procuring cause, in fact, the real estate commission doesn't care whether you get paid or not. So anything to do with procuring cause is going to have to go to the realtors Association. And it's not a matter of the real estate Commission's concern. That also includes other commission disputes or money disputes of that nature, and contract issues as I've met, as I mentioned earlier, in fact, over my career, I've been able to get several of these cases dismissed, because they have alleged matters that, in my opinion, were either contractual disputes or customer service. And I've actually had to use that as a response before in a complaint saying, hey, if my client did this, this is just a matter of bad customer service, you don't have any jurisdiction over bad customer service. So if my agent committed bad customer service, that's a marketplace issue. But that is none of your business at the real estate commission. And I was able to get a case dismissed over that because essentially, what the consumer was claiming was that our client had bad customer service, didn't return phone calls timely, didn't do the things that you as good agents do. But again, that's not actionable unless it violates a state law. The other thing that's important to note here is that in order for it to be actionable, it does have to violate a state, federal or local law. So when sometimes I get the complaints and they say the real estate agent did X, Y, and Z But they don't tell me what federal or state or local law that violates, that provides a defense for us, for us to go back and say, Well, if you can't tell us that that violates a law or a particular law, then you have to dismiss the case, because it is their duty, they have the burden of proof at the state to prove that you violated a law or rule or regulation. So they have to tell us upfront what rule it is that they say that you violated so that I can then look at the elements of that law and say, well, in order for us to violate that law, we had to fail to do A, B, and C. And while we may have failed to do a, we did B and C. So therefore, it doesn't violate the law. That's called the elements of that case. And I can argue against the elements all day long if they provide us the right statute. And recently, I have seen several cases coming through without any violation of any statute. And so I'm able to get those cases dismissed, and most of the situations so now let's run through what happens once a case is filed against you. So with a consumer does file a case or anybody files a case against you, as far as assigned to an intake person at the LLR, the real estate commission, they are going to look to see if they have jurisdiction jurisdiction means is, is it a matter that is covered by this law that they may be able to investigate? And do they allege enough facts that if these facts are proven true, or that you may have violated a statute So for instance, if one real estate agent files a grievance against you, saying that they were supposed to get 4% of the Commission, and you only paid them 3% of the Commission on the co op, the intake analysts should dismiss the case immediately for lack of jurisdiction. However, if it is a case, it is under their jurisdiction as a possible violation of the state law, then they will assign it to an investigator and I have had the pleasure of working with pretty much every single investigator over at the real estate commission and can say without doubt, they are a great group of honest people, they are not out looking to screw you, or to try to get you in trouble. Their job is simply to investigate something that a consumer has told them, and to see if it is in fact true. I enjoy working with these professionals. And I think they do an outstanding job and I don't think they get enough credit for what they do. Once the investigator gets the complaint, they will write it off in letter form and send you a copy as well as your broker. The letter will tell your broker and you what you did wrong in terms of some facts as well as a statute that you allegedly violated, it will also provide you 10 days in which to provide a written response. First thing you need to understand is you do not need to handle this on your own, you need to hire an attorney and you need to hire an attorney that understands 40 dash 57 because somebody who does it on their own can find themselves in a lot of trouble because an investigators duty is to investigate the facts that are alleged. However, the statute says they may continue to go in a different route. So if they come to investigate you on x, and in their investigation, they determine that you did not violate x, but you did violate y and z, then the investigation now moves over to y and z. So you want to be able to hire an attorney who can basically pinpoint what they're doing and keep their directions and their attention on the violation so that it doesn't become a bigger investigation. First of all, second of all, you need to make sure you hire a lawyer that understands 40 dash 57. And just because you're a real estate attorney doesn't mean you know a thing about 40 dash 57. In fact, most closing attorneys don't have a clue about 40 dash 57. And some don't even know it exists. So when you're hiring somebody, you need to ask them what they understand about the statute that governs you. I know most closing attorneys don't understand it. Because in Greenville for the longest time, while yours were out opining that pay at the table was perfectly legal. This is where somebody, a closing attorney would cut your commission checks partially to you and partially to your brokerage so that you get paid at the closing table. And not only violate the statute, but the real estate Commission has issued at least three if not four bulletins, saying it's illegal. Yet today, I still get reports of agents doing this with attorneys in Greenville, where the attorneys have written memorandums telling them that is perfectly legal, it is not. So make sure you hire somebody who actually understands 4057. I personally understand 4057, I would say better than almost anybody because I spend so much time in that statute. And that's what we teach it with these continuing education classes, make sure you're hiring somebody who knows what they're doing in that statute. Very important. So once you've hired us to handle this complaint, we start looking at the complaint and looking at the facts and see the statute that they have actually alleged that you violated two things to understand. Back in the day, they used to give us a copy of the actual complaint. And I could take the complaint that the consumer filed. And I could use a complaint against him because usually they would run a three or four page complaint. And in the first part of the complaint, they would say you failed to do x. And then at the end of the complaint, they would say you did it. And so I could actually take the words that they said and show them that they're contradict themselves throughout this complaint. So therefore anything they say can't be trusted. And we were able to get many cases dismissed back in the day on that. The second thing we'll see sometimes is they don't put the statute that you violated oftentimes, because they really don't know that you violated anything, but they don't like some of the facts. Well, the law is they have to show that you violated some statute and they have the burden of proof and that they have the duty to prove that not you. You don't have to disprove they have to prove. So when they fail to give us a statute that you have violated my first response is You have failed to cite any law that we have violated, you have the burden of proof, not us. So unless you can tell us what we violated, cases dismissed, and I've been able to get some cases dismissed, making that allegation. I don't know whether that was the determinant factor, because I go ahead and still argue what I believe what they're trying to say. But that should be dismissive in and of itself. If they can't give us a statute, then they in fact, cannot prevail. So what we do as soon as we get the letter from you, we will immediately ask for attendance, usually a 30 day extension for us to investigate and review the facts. I'm going to ask you for all of your signed contracts, whether it's your contract, your listing agreement, your buyer's agency agreement, lead based paint form, seller, form, seller disclosure forms, anything that you have in your file that can help me, I'm also gonna look for any contemporaneous notes that you made during your representation of the client. And most importantly, I want all your emails and your text messages because in and of that, I will be able to find enough information to complete our defense, I usually also ask you to outline everything that happened to you factually, so that I can look at those facts and make sure that they match our paper story or record story. Once we get that we will then create a defense story for you. We'll put that in letter form back to the investigator telling him why the case should be dismissed, why it is without merit and why they need to dismiss it without any further action. Our hope is that the case is dismissed after are sent we send the documents over now. Once the documents go the investigator the investigator will continue the investigation, they can come and ask us for more information. And once they finish their investigation and have everything answered that they need. They then present their case to what's called the investigative review committee. This is also known as the IRC. The IRC is made up of five real estate agents from South Carolina who have various levels of experience. Typically, you'll have a staff lawyer meeting with them as well as the investigator. And the investigator will present the case as well as the recommendations for disposition. The IRC can decide at that point that there is no case that needs to go farther, and they can simply dismiss the case. Now keep in mind, they're not the ones who dismiss it. It actually is the real estate commission. So what they do is make their recommendations to the commission. And the commission can agree to accept that recommendation or not. The IRC can recommend that the case be dismissed as the first option, which is what we shoot for. The second option is to try to find a resolution in terms of as the discipline or the case. And the third is to send it to hearing before the Commission, the resolution can come in many forms, they can issue a letter of caution, which basically says, while we do not find that you violated the law, we are cautioning you against doing this, again, this letter of caution is not public, it does go in your file. So if you have another issue similar, they may take that into consideration. But that is the lowest form of punishment that you could get. The second thing they could do is they could recommend to the board that there'll be some type of settlement for lack of better term and what this typically entails is that they will come to you and say we believe that you violated the law. And this is what we are recommending for punishment. Now the punishment can arrange for many different things. Number one, it can be a public reprimand, all reprimands from the commission are always going to be public, which means that the order will be published, and anybody searching your name on the internet will be able to find that order. They can also recommend a fine, I've seen fines from as little as$500, up to about 20 $500. When the lat matter is of less concern, they'll go with the 500 route. If it's a matter that they are very upset about or think that it's egregious, they will try to push further to that 20 $500 range. In addition to that, they can ask you to take additional classes, frankly, I pay a higher fine not to have to take another 40 hours of pre licensure classes or take a core class again, there are other two levels of punishment. One is suspension, they can suspend your license for a length of time. Typically, when we see suspension, the suspension is typically stayed as long as the licensee complete some level of education or pays a fine. And then lastly, if they find that what you've done is so egregious, they can ask for you to surrender your license or have it revoked. Typically, they would send this over to us and ask you to consent if you consent that we helped draft the order so that the order has very little facts and is written in a more favorable manner to you so that it doesn't look so gracious to somebody who might actually be seeing this order. If we're able to resolve that then the case is over and we move on. Now. However, if you do not agree to their recommendation of discipline, then the other two options is we can do what's called a memorandum of agreement. This is where we all agree on the facts. And if we agree on the facts, but we don't agree on the discipline or we don't agree that it's a violation of the law, then we can send it to the commission. And what we do is we're reading into the record the facts at the state as well as the defendant has come to agree. We say these are the facts. We agree on these facts and either we don't believe that it is a violation or even if it is a violation, we believe it's a minor violation and doesn't warrant any discipline, and then the full board will make a decision as to what that discipline will be. If we cannot come to a memorandum of agreement, then we go to a full commission hearing. And that's a situation where we'll have an opening statement, a closing statement will present witnesses testimony, cross examination and things of that nature. And at the end of the day, the commission will decide if an FAA decide whether you violated the law. And so what the punishment will be. Typically, if you get to a full hearing, and you lose the punishments a lot worse, in my opinion, if you're able to get it resolved before then, the next truth you need to understand is this is very expensive to get you just through the letter writing process where you are responding to the complaint, negotiating with the investigator and hopeful that your case gets dismissed, or that you receive minor punishment, you're typically looking between two and $4,000 of attorney fees, maybe more, If, however, we have to go to a full hearing where we're either doing it through a memorandum of agreement, or a full formal hearing type manner, you're looking at anywhere between seven and $10,000, for that defense, and typically your insurance will not cover grievances with the real estate commission. So the last part of this is how do you protect yourself against this number one is you need to know the wall. It amazes me how many times I am teaching classes, I ask the agents in the class, How many of y'all have actually sat down and read 40 dash 57, just a smattering of hands ever go up. So the first thing you need to do is go to Google type in SC code, four, zero dash five, seven, print it off, get a highlighter, get a pan, read it, highlight things, circle things and make notes. When we do go over this law, it utterly amazes me how many agents don't know certain things are in there. And you can see the surprise on their face. And sometimes the scared look on their face when they know that they're doing things that are particularly prohibited by the statute. Secondly, you need to listen to these podcasts in these legal tips. I do these things to help real estate agents. And the more information you can get, the more things that you learn the better off you are staying out of trouble. Next thing is you need to have office meetings whenever your broker has a meeting they're having in particular, for particular reasons, attend those meetings, listen to what your broker has to say. They're there to give you information, ask questions of your broker, when you don't know, it is never a bad thing to go to your broker and say, Hey, I'm in this situation, I don't know what I need to do. It is never a bad thing to pick up the telephone and call the attorney and ask the attorney. I don't know what to do here. Next thing you need to do is be sure you keep up with information coming out of LLR. And the real estate commission they sent out before COVID, they were sending out a newsletter, read the newsletter, listen to what they're telling you at the commission, because when the newsletter comes out, and they say you can't do pay at the table, that means they're sick and tired of that. And they're going to start punishing agents for that. So look and see what they're telling you and follow what they do. Next thing you need to do is document your file. When you're meeting with your client. Document things that are important when the client tells you they want to buy a house without they could put a swimming pool in, make sure you're making notes of that. And when they change their mind and say you know what, I don't think I want a swimming pool anymore. Make sure that you have that information in document form in your file, confirm things and email with them when they are important matters that can get you in trouble, such as they've decided they don't want to do home inspections, make sure you get that in writing from them saying you know what, I don't want to do a home inspection. Keep your emails, make sure you keep contact. So those who keep a list of those emails, because that's what we're going to use to defend you if you get in trouble. And lastly, when you have questions, pick up the phone and call me or email me at Gary at Blair Cato calm. I'm always here to help real estate agents. If you do those things, I think you will protect yourself and keep yourself out of trouble. So that is kind of an overview of grievances. I hope you understand the process. If you got any questions, please don't hesitate to reach out to me going forward. All right, moving along. A couple of real quick things. I'm still waiting on an update from LLR as to fingerprinting that you have to do this year when you renew your license classes can be found on Blair cato.com core classes on March 23, because code of ethics has been offered on March 16, and the broker in charge classes being offered on April 27. And now to our segment as I see. So Renee sent me an email earlier this week she got from a lender, many letters sent out these emails about real estate trends, what's going on the market, they're all prepackaged marketing stuff that they get from some marketing service. And this particular email was entitled solar panels a bright idea to add it to your home value. This email claims that A study found that the buyers are willing to pay an extra $15,000 for an average size size solar array and at homes featuring silver capability sell more quickly than those without. Now why am I discussing this? Well, first of all, I did a podcast a few weeks ago that talked about what a tremendous issue it is to sell a house with solar panels and how appraisers basically said it's a value neutral addition. So first of all, I don't think the information in the article is even accurate. But secondly, you have to wonder who is it that they quote in this article, he quotes sources but they never name the sources or the study. But the larger point here is, before you send out this type of real estate marketing stuff, is that you need to make sure that the The material the material is being sent out is correct truthful is going to be well received. All I've heard about this email is what a joke it is, and how nobody believes his real estate agents don't believe that it adds $15,000 in value. So before you use these marketing services, make sure they're a service that you can use when you send your client that has information that you can review and make sure this is the message you want to send out. Because when you're marketing, you don't want to send a message out that most of the consumers is going to scoff at or not think is valid or think is flat out false. So please read it, make sure it is what you want to set out before you send it out. And that's the way I see him when it comes to Martin. Now, as to Gary's good news only as the COVID some interesting things were saying as Fauci said, The numbers are the numbers. So let's look at some numbers. The first number is just absolutely mind blowing. We just reported in South Carolina only 496 new cases of COVID with only a 4.6 positivity rate. The numbers are plummeting. In fact, they've gone down so low, it is a 90% decrease from what we were averaging just a couple of months ago, we were averaging in the Upper 4000s of cases. At one point we had over 6000 cases in one day. But we were pretty much averaging between 40 505,000 cases a day of COVID in January. Now here we are, first of March only at 496. After a day of only being in the seven hundreds, the cases are plummeting. And when I say plummeting, 90% decrease. It's unbelievable. Great news. As of February 21, we had 40 straight days of the seven day rolling average of new cases across the world declining bringing us all the way back to some September number so the numbers of cases across the world are declining hospitalizations across the world are down 55%. Maybe we're getting to the end of this thing. Here's some interesting facts also is it during the flu season of 2018 2019 477 children died under the age of 17 of the flu. This year, it's zero. But the number of COVID deaths under the age of 17 is only 204. So less people are dying from this airborne viral illness and dies in any normal flu season. If you're under the age of 17. And by the way, the IFR on that is 0.0008 which means a lot less children are dying of COVID than even died during normal year of flu. So that's a weird another weird fact that makes things look a little bit better. Another interesting chart I saw this week show that and then flu of 1918 pandemic chart for New York, London, Paris and Berlin. It's now perfectly aligning with the COVID chart at the end. So if you compare the ending of the flu pandemic of 1918 it's very similar to as we're seeing right now in the COVID chart. And that's very good news. Lastly, as I mentioned a minute ago, hospitalizations for COVID are plummeting worldwide, just in United States in January, we had over 130,000 hospitalizations. Today we're less than 45,000. We've had over 50 straight days of decreases, and Governorate master has ended our 11pm curfew calls apparently they realized that you could get COVID after 11 just like you could get it before 11. And they also ended the limit on large gatherings. So that brings us to the end of our show today. I hope everybody enjoyed it and understood how you are always at risk in the practice of real estate. So you need to do everything you can to protect yourself. If you like our podcast once again, I ask you to please like us, share us and subscribe to us. You can find more information about these podcasts by going to YouTube taping in Blair Cato that is our YouTube website, like that page and subscribe to that page and you'll always get notifications when new podcast and new legal tips come out. Everybody has a wonderful week and we look forward to seeing you at your next real estate closing at Blair Cato