There is nothing more disarming to a property owner than arriving home to discover their front door unlocked. The results of an unlocked front door could mean everything and potentially nothing. The majority of us lock doors when we leave home, so returning home after a showing to find the door unlocked must be upsetting. Sure, nothing may have happened — maybe the property was unlocked for a few minutes or such a short time that no one even discovered the unsecured home. Or worse, the door may have been unlocked for hours or days because there was not another showing and the seller was out of town. For some sellers, the amount of time the door was unlocked may be irrelevant — the simple fact is that the door was unlocked. 

If you step back and look at the process of listing a property from a seller’s perspective, the process is a wild version of a trust exercise. “Sure, you can have my keys … you have a real estate license.” “Sure, you can give access to another real estate agent because they too have a real estate license … even though you haven’t met.” “No, you don’t have to be present when the other agent whom neither of us has met comes into my property.” 

There are a lot of things that turn a real estate transaction on its head that require a real estate agent to be the calming force assisting the buyer and sellers to find resolution and/or advising them to consult their attorney. Such events include last-minute underwriting issues, damage to the property days before closing, or an unexpected ant infestation after the home inspection. All of these stressful situations can be defused in a number of ways as long as you don’t break a party’s trust or the law. But an unlocked front door on listed property? Well, that’s more difficult. 

When a seller chooses to list their property, they place a great deal of trust in the REALTOR^® community. This trust extends beyond the real estate company and their respective agent — it extends to the entire real estate professional community. 

When showing a property, you must make sure you secure the property before you leave. This applies to both the listing agent and any cooperating agent. Do not bestow that responsibility on anyone other than you — you are the agent, and you are the only person at the end of the day who needs to be able to say, “I placed the key back into the lockbox, and I checked the windows and doors before I left.” 

Lines 174-182 of the 2008 WB-1 Residential Listing Contract remind the seller that the responsibility to prepare the property for showings falls on the seller. This includes preparing “the Property to minimize the likelihood of injury, damage and/or loss of personal property,” according to lines 175-176 of the WB-1. A listing agent should have a candid conversation with the seller about what it means to have their home on the market. The agent should encourage the seller to survey their property and think about what will be done with pets, firearms, medications, bank information and other financial documents during property showings. 

Additionally in the listing contract on lines 176-178, the seller agrees to hold the “broker harmless for any losses or liability resulting from personal injury, property damage, or theft occurring during ‘individual showings’ or ‘open houses’…” However, that same language goes on to line 178 to say, “other than those caused by Broker’s negligence or intentional wrongdoing.”

The listing agent is negligent 

According to the listing agreement, if the listing agent leaves the home unsecured by failing to lock the front door, then the seller could hold the listing company and the listing agent contractually responsible. 

The subagent is negligent

If the unlocked door is the act of a cooperating agent, things get to be a bit trickier. If the cooperating agent from a company other than the listing company is working with a buyer-customer (a subagent) and that agent leaves the house unlocked, the seller could try to argue that the listing company is responsible because the seller authorized the listing company to engage the services of a subagent to “assist your broker by providing brokerage services for your benefit.” (See lines 138-139 of the WB-1.) 

The buyer’s agent is negligent 

If a buyer’s agent is associated with a firm different from the listing company, the seller would not have a legal argument to support holding the listing company or listing agent by way of the listing contract as being responsible. However, the seller could sue the buyer’s agent and their company for civil negligence. 

All three could be held in violation of the REALTOR^® Code of Ethics and have a complaint filed at their local REALTOR^® board and/or at the Department of Safety and Professional Services (DSPS), possibly be held in violation of any applicable MLS rules, and also potentially be sued civilly for negligence. 

Practice tips

• At all showings, be certain to be mindful that doors and windows are secured when leaving.
• Follow up quickly with the cooperating agent and remind them to secure the property before they leave. While this reminder may seem silly, slightly annoying and unnecessary, it only takes one time to become distracted by conversation, a pet or a cell phone and forget to lock the home back up. 

So the next time you’re leaving a property, tell yourself — “lock it up.”

Resources

• • “Preparing Your Seller to Prepare the Home to be Prepared for Showings – Part 1: Pets” in the June 2012 issue of Wisconsin Real Estate Magazine: www.wra.org/WREM/Jun12/PrepareHome. 
• • “Preparing Your Seller to Prepare the Home to be Prepared for Showings — Part 2” in the July 2012 issue of Wisconsin Real Estate Magazine: www.wra.org/WREM/Jul12/PrepareHome. 
• • “Bitter Pill to Swallow: Preparing a Seller for the Reality of Opening Their Home to the Public” in the March 2011 issue of Wisconsin Real Estate Magazine: www.wra.org/WREM/Mar11/BitterPill.