Is This a Duck?

I don’t know! It depends!

unnamedSome years ago I suffered at the hand of an aggressive (abusive!) insurance salesperson. Part of his creative pitch was that he really wasn’t selling insurance. He ultimately became so obnoxious I called the state licensing department (this was not in Maine), described the situation and wondered if this individual might be violating the state licensing requirement. I was prepared for bureaucracy and a run-around so I’ll never forget the investigator’s response. “Well, if it looks like a duck, walks like a duck, and quacks like a duck, it’s probably a duck.”

The recent controversy regarding Zillow’s “instant offer” program reminded me of that experience. Among the issues being raised is “Does this instant offer program constitute brokerage and is it, therefore a licensable activity?” Of course, the debate doesn’t stop there. As more organizations and individuals have joined the fray, the questions now range from “Is this good for consumer?” to speculation that Zillow is trying to “disintermediate” (I had to look it up too) brokers and agents. Personally, I’m reminded of a high school debating class and learning that an often-used technique is “begging the issue.” Whether or not the “Instant Offer” program is good for the consumer doesn’t really determine whether or not it’s brokerage. What determines whether or not it’s brokerage requires looking at the law–not whether or not people (brokers, agents, or consumers) like it.

Somewhere between “if it looks like a duck” and an in-depth analysis of statutes and case law, we might find the answer. However, as I often say in class, “Sorry, I left my judge’s robe home so I’m not qualified to offer a ruling.” I do have a personal opinion. But here’s the thing: that personal opinion is based on the Maine Statute that defines brokerage. (Title 32, Chapter 114, §13001 2.)

But here’s the really interesting thing–in case you haven’t noticed. My opinion is based on a MAINE statute. Would it be the same if I were in any other state? As is often the case, there just might be more than one answer to this question–one reason I teach that there are always two correct answers to any question:

  1. “I don’t know.”
  2. “It depends.”

If you ask me whether or not Zillow’s program is brokerage I’ll give you both answers. “I don’t know. It depends.” I don’t know because I’m not that familiar with the program and it depends because the answer might be different depending on where I am when I answer the question.

And that leads us to something to think about.

While we can still say with some accuracy, “all real estate is local” another reality is that the business of real estate is becoming increasingly global. Anyone licensed in two different states will likely honestly admit it becomes important to remember the differences in laws and rules between those two states. Yes, there are many commonalities–but those differences can be significant. “The devil is in the details.”

It would be a keen grasp of the obvious to observe that the world is changing. Twenty years ago the technology didn’t exist for a nation-wide company to offer an “Instant Offer” program. A localized version might have been feasible, but the concern would have been (for example) “Can I legally do this in Maine?” It’s not that simple anymore.

Without creating a political discussion, I think issues like the Zillow question can make us wonder if we will come to see more federal regulation that will facilitate one answer to questions. We can, of course, debate whether or not this would be a good thing… and wonder what the motivation might be for increased federal oversight of real estate brokerage, but that somewhat begs the questions of “Where are we headed?” and “Are we sure we want to go there?”

Oh, by the way. Within 24 hours of talking to the investigator at the insurance division, I stopped hearing from the duck who was “not selling insurance.” His statement actually became true. He was not selling insurance. In fact, he was barred from selling anything resembling it in that state.  Sometimes things are pretty simple and a duck is just a duck.

A recent article posted at RIS Media raises even more questions and reports some opinions on this question.

Article written by Walter Boomsma, a real estate educator in Bangor, ME. 
Check out his blog at boomsmaonline.com for more topics and discussions!

 

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Please CAN the SPAM

“There’s no such thing as bad publicity,” is often attributed to P.T. Barnum although there’s no hard evidence he said it. There’s no doubt, however, that he was a self-promoter extraordinaire. An interesting discussion is available for those engaged in the practice of real estate brokerage–how much self-promotion of ourselves should we be doing versus promoting properties?

During one of those discussions with a student, he was quite adamant that whether we are promoting properties or ourselves, we should be using every available means at our disposal–it’s a fiduciary duty to our clients! His twist was “There’s no such thing as bad advertising.” My tongue was only slightly in my cheek when I told him that I hoped he was taping his business card on the wall of every public bathroom he used since business cards are cheap and a lot of people would see them.

Seth Godin, in a recent blog post, notes that marketing used to be done with care and caution, but now that getting attention (publicity) is easy and cheap, we are “like a troop of gorillas arguing over the last banana.” For those unfamiliar, the gorilla reference relates to a series of books by Jay Levinson on “GuerillaMarketing.” The premise behind the popular book series was that small businesses could compete by adopting unconventional methods of promotion. For an effective program, you didn’t need a huge budget, you just needed to have imagination, energy and time.

But you also needed to think because guerilla marketing works best when it’s targeted. Just because you can tape your business card on the walls of public bathrooms doesn’t mean you should.

Guerilla marketing is creative and fun, but it is still about building your image in a strategic manner–not just doing the quick and easy. Let me give you one example that is a personal annoyance.

Technology now makes it very easy to email information to diverse audiences and lots of people. All you need is a mailing list, right? And best of all, email is free! (That’s actually not true, but it’s a different discussion.) So a lot of folks started playing the numbers game. Some guy in Nigeria figured out that if he sent out enough emails suggesting he needed help getting his family fortune moved to the United States, some small number of people would perhaps be willing to help him.

So, yes, it does work. It works really well for the short term. But for every willing victim, there are thousands–perhaps hundreds of thousands–of people who are simply annoyed by his constant badgering and desire to take advantage of people. (Robo-calls fall into the same category when you think about it.)

For those who are using technology–email and social media–as a vehicle for promotion, it might be wise to consider the full impact of what you’re doing. I don’t maintain counts, but every week I receive at least a dozen or so “ads” from real estate licensees. These range from announcements of open houses to brochures that tie up my server because they are megabytes in size.  Some are for properties over 100 miles away. But that’s not what really bothers me.

What really bothers me is how many of these emails are in direct violation of federal law. You might find it mildly interesting that the term “CAN SPAM” is an acronym for “Controlling the Assault of Non-Solicited Pornography And Marketing.” So sending unsolicited email is considered an assault–I can relate to the term while I delete them from my inbox.  What might be more interesting is that if your marketing and advertising program includes assaulting people with email, you’re risking a $16,000 fine by the FTC for each email you send that violates the act.

We can debate the effectiveness of the act, but it is law and many people are at least mildly aware of it. So consider that sending email that does not comply is also advertising your willingness to violate the law. It’s actually not a hard law to comply with, so do a little research:

  • National Association of REALTORS® offers a number of articles and resources
  • HubSpot offers a short list of do’s and don’ts along with some FAQs
  • FTC (Federal Trade Commission) offers a compliance guide for small businesses
  • Comm100 provides some detail and unintentional entertainment by using the word “complaint” repeatedly when they mean “compliant” — an interesting error for a company specializing in communication!

What are you telling your prospects unintentionally? This really isn’t just about the law. If you find receiving SPAM annoying, you might not want to send it! And if you don’t find it annoying, remember that a lot of people do! That’s one reason the law was passed. You might just distinguish yourself by doing it right.

 

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Should I Renovate…?

Written by Walter Boomsma, instructor. See his blog.

A question we often hear from potential sellers is whether or not they should renovate or otherwise improve the property before selling. While there’s no one correct answer (except “it depends”), most licensees will recommend some degree of “freshening” — cosmetic improvements that might fall under the headings of staging or curb appeal.

paintBut what about the “bigger” stuff? Should we remodel the bathroom?

Every year Remodeling Magazine reports the results of research designed to determine which projects have the greatest dollar return. The results of the most recent survey are reported on REALTOR.COM and might surprise you. While sexy renovations may help with the sale, it doesn’t necessarily mean a great increase in value. The top return was attic insulation–statistically it returns more than the cost.

We ought to bear in mind (and explain to prospective sellers) that the value of the improvement shouldn’t simply be measured in dollars, but having some data beats pulling our opinions out of the air. If you look at the chart, note also there are regional differences. Also, pay attention to what people are saying. I know when I talk with folks who are buying and selling two things that come up consistently are “energy efficiency” and “aging friendly.” It shouldn’t be a surprise to hear that in Maine where we have an aging population and some mighty cold weather.

One of the funnier questions I had a few years ago came from a young couple who wondered, “Should we remodel and add a bedroom if we’re planning to sell in ten years–will we get back the money we spend?” That’s some strategic thinking! In this case, they ultimately decided ten years living in a home with the additional bedroom would be worth spending the money–even if the long-term payback wasn’t guaranteed. There are too many “it depends” to answer the dollar question with any degree of certainty.

Seth Godin recently wrote a piece (Economics Is Messy) about the difference between value and profit. When considering the “Should I renovate…?” question, it’s an important distinction. The average dollar “return” on improvements is about 64%, making most improvements a loss if we only measure in dollars. When we look at the value we include factors like how much more salable the property becomes and how much pleasure the current owner will reap from the improvement. Those factors add value and may well offset the lack of dollar profit.

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Could Facebook Ads Violate the Fair Housing Act?

Written by Walter Boomsma, instructor. See his blog.

Walter notes: I’ve occasionally observed that Facebook ads are a great place to find ads that do not meet the requirements of Maine License Law and Rules. Well, here’s another article (reposted courtesy of Tuesday Tactics) that raises a slightly different concern!


fair-housing-logoFacebook ads are a powerful way to generate leads, find prospective buyers and sellers, and optimize your marketing spend. There are lots of tips out there on how to maximize your ROI and craft ads.

But recently Pro Publica reported that Facebook’s ad targeting system may violate the Fair Housing Act of 1968. From the piece “Facebook Lets Advertisers Exclude Users by Race“:

“The ubiquitous social network not only allows advertisers to target users by their interests or background, it also gives advertisers the ability to exclude specific groups it calls “Ethnic Affinities.” Ads that exclude people based on race, gender and other sensitive factors are prohibited by federal law in housing and employment.”

Facebook disagrees. According to an article in Engadget:

“Facebook defended the practice, telling USA Today that “multicultural marketing is a common practice in the ad industry and helps brands reach audiences with more relevant advertising.” However, it added that “we’ve heard from groups and policy makers who are concerned about some of the ways our targeting tools could be used by advertisers. We are listening and working to better understand these concerns.”

If you use (or are considering) Facebook’s sophisticated ad targeting, you may want to keep this issue front and center in your mind. Be prudent how you use the targeting, and be aware that there’s a debate going on right now about the legality of the platform’s features.


Tuesday Tactics was developed in the Fall of 2008 and began publishing in the Summer of 2009 by Scott Levitt, owner of Oakley Signs & Graphics, to help real estate agents survive and thrive in an increasingly challenging market. In addition to Oakley Signs & Graphics, Scott is also the founder of My Real Helper, a real estate marketing content service designed to help agents market themselves and build rapport with clients. His newest company is Oakley Canvas Prints, a one-stop source for turning your photos into art you can hang on your wall.
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REALTOR SAFETY ALERT

Written by Walter Boomsma, instructor. See his blog.

caution

PLEASE TAKE NOTE! A female Bangor agent was contacted today by a buyer named “Doug”. The call sounded suspicious, as he refused to give his last name and said he could not receive emails because his server was down. He said he is a hairdresser and looking for a $400-$500K property in the Greater Bangor area because he has a grand opening for a salon next week. She Googled the number and found it was from Massachusetts, and there is a REALTOR Safety Alert regarding his activity, which is copied below.

IF YOU GET A CALL FROM HIM, PLEASE CALL THE POLICE. DO NOT AGREE TO MEET OR SHOW THIS MAN ANY PROPERTIES.


REALTOR SAFETY ALERT: SUSPICIOUS CALLS IN MEDFIELD MASSACHUSETTS:

September, 2014: In February of 2013, we learned that a suspicious individual, identifying himself as “Doug” and calling from phone number 508-816-1064, had been contacting female agents indicating an interest in looking at vacant properties for a hair salon, calling it both “House of Doug” and “Hair by Doug”. Last week, he contacted several female agents of an office in Medfield, with the same story and phone number, interested in properties on the Natick/Framingham line. When asked for an e-mail address by agents he says it is still being set up, which was what he also said in February 2013. The police have been contacted and have reached out to him, and we urge all members, male and female, to exercise vigilance if contacted by anyone who may appear to fit the description above, and always take extreme precautions in performing your duties as a REALTOR®. Please contact your local police if you receive a call so that there is a record.

“New” Core Courses — but let’s not call ’em that

Written by Walter Boomsma, instructor. See his blog.

When my oldest daughter was a toddler we were at the beach. In a parental desire to show her things and develop her understanding and vocabulary, I pointed out sea gulls. (She liked animals and birds–still does.) In short order, she began pointing and saying, “Daddy! Birds!” Somewhat absent-mindedly I would reply, “Those are seagulls, Bethanie.”

After several of those exchanges, she said pointedly, “Daddy, you can call them seagulls. I’m going to call them birds.” I have always admired her independence. On this occasion, I opted to accept her refusal to adopt my vocabulary.

But names can be important. So after announcing that “new core courses” are being released, we will not be referring to them as “new” and “old.” We need some fairly precise language here, so I will refer to them by their proper names. Effective October 1, 2016, there be a Core Course for Designated Brokers 2 and a Core Course for Brokers and Associate Brokers 2. These courses effectively replace the Core Course for Designated Brokers 1 and the Core Course for Brokers and Associate Brokers 1. When I say “replace,” understand that the courses numbered 2 are different than the courses numbered 1–both in content and application.

So what should you take (or have taken) before you renew your license?

What hasn’t changed:

Designated Brokers must take the “Core Course for Designated Brokers.” Brokers and Associate Brokers must take the Core Course for Brokers and Associate Brokers. That’s actually pretty straight-forward.

Where it potentially gets confusing:

Whenever there’s a change in core courses, the question always raised is “which core course do I need to have completed when I renew my license?” The answer is, “It depends!” While figuring out the answer initially sounds a bit daunting, this too is fairly straight forward. It depends on the expiration of the license you are renewing. It might help if you have that information before reading further.

Brokers and Associate Brokers with a license expiration date prior to April 1, 2017 (and who renew before that date) may fulfill the core course requirement with either the Core Course for Brokers and Associate Brokers 1 OR the Core Course for Brokers and Associate Brokers 2.

Designated Brokers with a license expiration date prior to April 1, 2017 (and who renew before that date) may fulfill the core course requirement with either the Core Course for Designated Brokers 1 OR the Core Course for Designated Brokers 2.

Brokers and Associate Brokers with a license expiration date on or after April 1, 2017 (and who renew after that date) must fulfill the core course requirement with the Core Course for Brokers and Associate Brokers 2.

Designated Brokers with a license expiration date prior to April 1, 2017 (and who renew before after date) must fulfill the core course requirement with  the Core Course for Designated Brokers 2.

The same explanation would apply to activating a currently inactive license. If you activate before April 1, 2016, either course is acceptable. On or after April 1, 2017, you must have the appropriate Course 2.

If you are at all confused, don’t guess! If you call or email me, the first question I’m going to ask you is “When does your license expire and when to you plan to renew it?” That one bit of information will allow us to determine the correct answer 99% of the time. You can, of course, also ask your DB or call the Maine Real Estate Commission if you need some help determining the answer.

As a reminder, continuing education is only required to renew a license. Sales Agents, for example, are not required to have continuing education hours–a Sales Agent License is not renewable. A Sales Agent’s “continuing education” is the Associate Broker Course. Associate Brokers who plan to take the required course and apply for a Broker License would also not need “continuing education.” Personally, I still think continuing education is a great idea in both of those scenarios even though it’s not required. I remember one sales agent who came to the Associate Broker Course with a lot of “under contracts” during a very depressed market. His classmates were in awe and wonder. He explained, “I’ve taken over 40 hours of continuing education. There might be a correlation!”

I will be teaching both the Core Course for Brokers and Associate Brokers 2 and the Core Course for Designated Brokers 2 on Friday, October 7, 2016 at the Ramada Inn in Bangor. For more information and to register, you can call the Arthur Gary School of Real Estate at 856-1712 or visit the Arthur Gary School of Real Estate Website.

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Help Me Understand… — is this a solution in search of a problem?

Written by Walter Boomsma, instructor. See his blog.

take_a_walk_150_clr_8169Let’s think about this.

Since I’m not actively engaged in brokerage on a daily basis, I take some extra steps to make certain I’m keeping current with “what’s going on in the business.” I know all too well the hazards created when class content and delivery aren’t in tune with the current environment.

One of those steps is to scan the media regularly and consistently. Recently there have been some headlines regarding action taken by the CFPB (Consumer Financial Protection Bureau) that are at best misleading. One I saw this morning claimed “CFPB makes clear lenders’ ability to share closing disclosure.” Actually, the CFPB has proposed some changes to TRID (TILA-RESPA Integrated Disclosure Rule). Until those changes are adopted, nothing has changed. The original rules remain in place.

In layman’s terms, the current rules adopted last fall created a reluctance on the part of lenders to share Closing Disclosures (a detailed statement of the buyer/borrower’s costs) with third parties–including real estate licensees. I suspect this stemmed in part from a desire to protect borrowers’ privacy. That would seem to be noble goal. But it was a change that did not sit well with some licensees who had become accustomed to the lender sending the previous disclosure (called “the HUD”) to the licensees involved in the transaction.

Under the new rule, lenders were given strong confidentiality guidelines that actually go far beyond the issue of who gets the closing disclosure. Those guidelines increased the borrowers’ confidence that information about them and their transaction would remain confidential. Nothing, however, took away the borrower’s right to share that information with others.

Personally, I never understood why this created a problem for licensees. Under the new rule, the lender would send the closing disclosure to the borrower. The borrower would, if he or she wished, contact his real estate licensee and provide a copy for review and discussion. I informally polled some of my students and, while many admitted it felt like an extra step, no one reported a serious problem with the process. In exchange for what might be seen as an extra step, the buyer/borrower received additional protections and maintained responsibility for the the process. So the campaign to change this rule feels a bit like a solution in search of a problem.

Perhaps someone can help me understand why this change is necessary. The lines of communication between a real estate licensee and his or her client should be open and frequent. We say it often, “The agent (licensee) advises, the client decides.” Why would that not apply here? The information contained in a closing disclosure belongs to the client, not the licensee. This change might actually be seen as a power grab, taking away a borrower’s right.

We sometimes hear licensees “complain” that buyers and sellers do not accept enough responsibility for what happens in a transaction and are quick to blame the licensee when things go wrong. If that’s true, does it really make sense to take this step?

I haven’t looked at the specific language of the proposed rule changes, but a summary indicates the change will include (among other things) “guidance on sharing the disclosures with various parties involved in the mortgage origination process.” It seems to me that we already have that and we might think about what we’re doing and saying if we change that guidance.

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