Tag Archives: Legal Issues

Reading the Union Position on Monell v. Boston Pads

One of the law firms who filed the union-side amicus brief

One of the law firms who filed the union-side amicus brief

As my readers know, the recent Massachusetts Supreme Judicial Court (“SJC”) handed down its ruling in Monell v. Boston Pads. I wrote about that case and cautioned against irrational exuberance from the results, because the results were not exactly a huge victory for the real estate industry’s position.

Thing is, Bararsani v. Coldwell Banker, the ginormous California case that everyone has been watching has yet to be decided, and one rightly wonders what the impact (if any) of Monell v. Boston Pads might be to that case. There is no controlling authority, since SJC is the state supreme court, not the Federal one, but there may be persuasive authority to the judge in Bararsani. I touched on that in my previous post.

Now one of the more interesting subplots of the Bararsani case — and all real estate independent contractor cases — is the involvement of the labor unions. One piece of scuttlebutt I heard from the folks at CAR (California Assoc. of REALTORS) is that CAR approached the legislature to make it clear that real estate agents were not to be considered as employees… and the legislature refused, because the unions didn’t want that. (What that says about REALTOR political power is a subject for another post, another day.)

So… I thought it might be interesting to try to understand what the argument of the labor unions are. Thankfully, the unions — by way of an amicus brief — made its arguments clear to the court in Monell. I understand this is probably of zero interest to those readers who aren’t law junkies or aren’t involved in strategic planning for the Bararsani litigation, but… what the hell. I think it’s interesting.

Notorious ROB — where I read law briefs so you don’t have to. :)

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Monell v. Boston Pads Ruling: Hold Off on the Jubilation

Earlier today, the Massachusetts Supreme Court handed down its decision on Monell v. Boston Pads, one of two independent contractor status lawsuits that the real estate industry has been watching with baited breath. (The other one, still being litigated, is Bararsani v. Coldwell Banker in California.)

Bottomline: the brokerages and the REALTOR Associations that backed them won. I can almost hear the champagne corks popping from my house in Houston. Here’s the press release from MAR (Massachusetts Association of REALTORS):

This decision is a win for consumers and the entire real estate industry because real estate brokers and salespersons will still be able to work as independent contractors. Affiliating as an independent contractor  has been the backbone of the profession for more than 100 years.

“We are pleased that the Massachusetts Supreme Judicial Court affirmed the pro-consumer choice by real estate professionals to affiliate as either independent contractors or employees.” said 2015 MAR President Corinne Fitzgerald, broker-owner of FITZGERALD Real Estate in Greenfield. “This relationship has worked for generations and it is what consumers have come to expect regarding agent entrepreneurship and availability. We’re glad the choice will continue.”

Inman News headline on the story looks like this:

Appeals_court_upholds_centurylong_real_estate_broker_structure_in_epic_win_for_industry_and_consumers___Inman

And on Facebook and elsewhere, the celebrations continue.

First of all, I’m glad the case came out the way it did, and I can get behind the whole “this is a win for consumers” angle on the decision.

But might I suggest tapping the brakes on this joyride a touch? I’ve read the actual opinion itself, and while this is not legal advice, it is advice to consult your attorney when looking at how you’ve structured your brokerage operations.

This ruling is not an epic win. The ruling does not confirm that real estate agents are considered independent contractors. In fact, it is not a clear-cut victory for the brokerages at all. As Mos Def says, “Relax, pump the brakes. You’re speeding, money.”

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RPR-Upstream and Personal Liability for NAR Directors

board_of_directors

I’m still at the NAR Midyear Legislative Sessions and heading out to meetings soon, so this will be brief. By now, you know that NAR’s Finance and Executive Committees have approved RPR to become the platform for the hitherto-mysterious Project Upstream. Inman News has coverage of the decision.

Thing is, this decision highlights precisely what is problematic with governance of Organized Real Estate entities, both Associations and particularly MLSs. NAR’s DANGER Report released yesterday highlights governance as a major threat, and I know from talking to various attendees that governance and the decision-making process are two major complaints from rather powerful and influential people in the industry.

If I were one of the 800-ish Directors of NAR, I would seek legal counsel from my personal attorney on what personal liability issues arise from my voting to approve or disapprove the RPR-Upstream project. Let me explain, briefly.

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Copyright and Solds-Over-IDX

Lawsuit

Judging by the stats, it appears that few people actually took the time to listen to my most recent podcast, featuring Brian Balduf of VHT Studios. We discussed a number of issues surrounding copyright of photographs and liability that arises from misuse, which… yeah, I understand those are sleeping aids for most people. Nonetheless, I wanted to write this brief (I hope?) post because the issue is important and one that MLSs and brokerages need to get ahead of right now, rather than waiting for a lawsuit to land on their desks.

If you do have the time, I’d recommend going and listening to the full podcast. Brian’s perspective is invaluable here. But, let me give you the bottom line here.

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Notorious POD: Episode 12 – Photos, Copyrights, Liability with Brian Balduf, VHT

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It’s been months since my last podcast, but that’s just how things work out sometimes. But with T3 coming up, I figured I should upload this.

Brian Balduf, CEO of VHT, joined me to discuss an issue that’s really going a bit under the radar. His post Now Is The Time to Shield Your Real Estate Brokerage From Intellectual Property Liability dealt mostly with direct syndication to portals such as Zillow. But in this podcast, we discuss copyright violations and liability at the MLS level, and within IDX, given the new rules about sold data over IDX.

I suppose you have to be a real geek about real estate industry stuff, but I do think this is an important topic for brokers, MLS, and even agents. You may be on the receiving end of some letter from a “copyright enforcement company” demanding thousands of dollars for unauthorized usage of photographs.

I’d listen, then read Brian’s post, and think about a strategy for dealing with this important issue.

-rsh