Before you go into a Realtor arbitration hearing here are some key tips to know!
Going into a real estate arbitration with your local Realtor association may seem like an easy task, but ask anyone who has been though it and you will often find this is simply not the case. You will argue your case in front of a panel of real estate professionals, and you will be dealing with an opponent that is often times out for blood. There are rules of procedure you must know from the C.A.R. ethics and mediation guide, and you have to understand how to best position your case in the event you will need to appeal the decision on due process or procedural grounds. There is usually a lot on the line, including often times a pending ethics complaint that is filed by the Complainant and which must be dealt with by the responding party. If there is ever a time to “lawyer-up” in your real estate career, this is probably a good time. Here are some tips if you want to go it alone and fight for your commission.
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Attorney Steve’s Top Five Tips to succeed in commission or other broker arbitration cases
Here are some of the hidden points you might not think about if you chose to represent yourself at your real estate association arbitration case. This is not a complete list. There are many things that come at you at once when you are in a hearing or board arbitration:
1. Get everything on the record (you must set the stage for a due process / procedural challenge). One of the most important things at the arbitration hearing or ethics hearing is to make sure you are making a solid record in case you have to appeal your case. Many people think positive and assume they are going to win their hearing and earn the right to their commission. However, if you lose, you need to make sure you have made a good record for appeal. This is a lot trickier than it might sound. Basically, you need to make sure all your concerns and arguments are on the record. In a Realtor association hearing, the arbitration panel (a voluntary panel) goes both on and off the record. If you have a concern about something that occurred while OFF THE RECORD (ex. like telling you that you cannot submit your evidence or call your witness), you need to make sure you put that ON THE RECORD when the audio recording gets rolling again. If you don’t, aside from sending a subpoena to the board members to call them at a subsequent appeal, you will find yourself without a strong leg to stand on. Get all your concerns ON THE RECORD.
2. Get copies of ALL evidence that was submitted at the hearing before you leave! During the hearing, both parties typically submit evidence (ex. listing contracts, MLS informant, property “comps” information and other documents). Make sure you know WHAT THE ARBITRATION PANEL IS TAKING INTO EVIDENCE. Ask them for a copy of everything that is being taken into executive session for review. You want to make sure you know what documents the panel is relying on and this is even more important if you end up appealing the case.
3. Call all your witnesses and submit all the evidence you brought. If they won’t accept that, put all your objections ON THE RECORD. Sometimes you may feel “pressured” to move along the hearing, and this may include a panel member, or perhaps the presiding chairman, not allowing you to call all your witnesses or present critical evidence in your case. If this happens, you cannot be timid. You must fight to get your evidence in, and again, create your record for appeal. As civil litigators, we seek to do this in every case, whether or state or federal litigation, or real estate arbitration. You cannot overlook this important tip.
4. The final question (“are you satisfied with the results of the hearing”). At the end of the hearing, the panel arbitrators for the local real estate association may ask you if you felt like you received a fair hearing. Don’t just “go along for the ride” to be nice and seem agreeable. If you felt pressured, or critical evidence was ignored, or highly prejudicial evidence (ex. hearsay evidence) was introduced, say something on the record. You can do this in a nice way and still be respectful, but don’t just say YES hoping or feeling like you won the arbitration. This would be a critical mistake that could be used against you if you have to seek review of the panel award.
5. For commission disputes – Don’t forget to argue the “PROCURING CAUSE FACTORS.” Many commission disputes involve either contractual issues, interference by brokers, breach of fiduciary duties and other issues. Whether or not a broker was a “procuring cause” is usually a key inquiry. If you are the complainant claiming a right to a commission, be prepared to have evidence that proves the factors weigh in your favor. If you are the responding party accused of broker interference or stealing their business, be prepared to rebut this evidence and to show you were the procuring cause. This can be extremely tricky because the “procuring cause guidelines” factors are not always easy to discuss, explain, or prove. You have to be ready for this though and get your evidence on the record.
I hope these general tips help win your case. If you need experienced real estate counsel, we are here to help you. Here is some more valuable information about what happens at a Realtor board arbitration dispute.
Click to watch Attorney Steve discuss ethics hearing preparation on our Youtube Channel!
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Contact a Real Estate Arbitration Law Firm
Things can go crazy at a local board association. The hearing process can be confusing, daunting, and challenging. We can serve as your counsel and help you in the following types of matters whether you are the complaining or responding party, Plaintiff, or Defendant:
- Realtor arbitrations
- C.A.R. mediations / C.A.R. interboard mediation
- Ethics Hearings
- Responding to a civil lawsuit
- Responding to a request for mediation
- Procuring cause commission disputes
- BRE audits, hearings and investigations
- Subpoena response
- Property management audits
- Motions to vacate arbitrator’s award
- Other real estate matters
We understand the real estate business. Steve Vondran, Esq., heads up the real estate broker law practice area, and he is a a licensed broker in both California and Arizona. We are licensed to practice law in both states. He has experience in mortgage lending, residential and commercial real estate. We offer tenacious legal representation and flexible fee structures to fit your budget. For more information contact us at (877) 276-5084 or fill out the contact form below to have one of our staff or lawyers contact you. Please make sure to leave your phone number.
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