Connect the Speakers: Trista Curzydlo on how to stay out of legal trouble as a real estate agent

'Without disclosure, recording is a deceptive trade practice, and it puts agents in such a difficult position'

Trista Curzydlo has depth of experience when it comes to real estate law as a former legal counsel for the Wichita Area Association of REALTORS, in addition to directing government affairs for the entity. She started teaching classes in that role and now hosts educational sessions all over the country, covering everything from regulatory agencies and licensing to data security to, lately, what cannabis legalization means for real estate.

She’ll be sitting down at Inman Connect New York, January 29 through February 1 at the Marriott Marquis Times Square, to talk about how to stay out of legal trouble as a real estate agent. And she was kind enough to share her thoughts about the biggest legal pitfalls that could do you in and how to avoid them with Inman.

Tell us a little more about your session. How will it address how the industry can embrace the shifting market?

I know we’re going to talk about copyright — that’s kind of unavoidable because it’s such a focus of the classes we’ve been doing lately. We’ll talk about the use of images, who created them, how they were created, and who has what rights. Identifying who owns the rights to that work — especially if there are images you didn’t take yourself — and the proper procedure for licensure.

I’d also like to talk about recording in properties; that’s become such an issue that everywhere I go, someone wants to ask me about. Without disclosure, recording is a deceptive trade practice, and it puts agents in such a difficult position because I know more than one agent who said “we were closed and done, and then my seller told me, ‘by the way we recorded audio and video of everybody who walked through the house.’” Video is not regulated in most states, it’s the wild west, and the question there is: do you have an expectation of privacy, and that’s a generational divide. Some of our members who are boomers and above are like, “you have privacy in a house” — but is it a home if you’re showing it?

I just got back from NAR Annual and was talking about pot. NAR did a survey where they asked “has it been an increase or decrease in property values, how many of your clients want to live close or far away from a dispensary,” and looking at those responses was interesting — split down the middle. What it comes down to is more questions about leases and can you use a boilerplate lease — the answer should be no — and I was shocked to see the number of people who said, “I leased to a dispensary and used a boilerplate lease.” Even in Kansas — CBD oil is sold everywhere, and I just clench my teeth because it’s kind-of-sort-of but not really legal.

What do you think are the biggest opportunities to focus on in the real estate industry right now?

Definitely smart homes and conversations with your clients about, is this something that’s going to stay or is it going to go when you move? Do you even know how, if you leave it, to reprogram it? Because that apparently is an interesting conversation that people have to have. In Minnesota, it says you have to completely reset any smart home devices to factory settings and the new owner can redo it, but some states don’t have any regulation on how that technology is. Clearly, you’re going to take your Echo, but if you’re one of those people who bought a gas range that is smart, are you still going to have control of it? That’s something agents need to start asking questions about, and that leads into asking more questions about what’s being recorded in the property so you can start making those smart disclosures.

And always copyright — do you have a contract with your photographers or your videographers or your drone operator, and what does that contract look like? I’m still amazed that in an industry that is so contract-focused and wants to meet the requirements, people still don’t have contracts with the people who provide services to them. The ease of licensure when it comes to images as well as language or music that’s been created by another entity.

And we’re almost too late into it now, but there are a lot of brokerages that never created any kind of policies and procedures manual around social media. And now the cow is out of the barn and you’re not going to get it back in there, but it is something that brokerages need to focus on training — the expectations for digital and electronic communications; what format are you using when it comes to conversations with your clients? In most states, those conversations need to be part of the brokerage’s file, and in a lot of states they don’t save texts or private messages on WhatsApp. We need to have a conversation about that. And not only do we have those saved, but then they’re part of the broker’s file, and we have to address in contracts what will happen to data that the agent has through the course of their relationship with a client if they leave the brokerage.

And there are more social media implications, too. My mom loves open houses and growing up I would go to a lot, and looking at it now, it’s like, “Oh my gosh, if I did that today, I’d be in their office where they have all their diplomas hanging and try to find out: where do you work, how much do you make, why are you moving?” There’s a whole generation of folks who are becoming buyers, who Google everything and everybody. The ones that always crack me up are when a very excited agent says “I love looking at property with a client” and tags them on social media, and then their spouse or their current employer is like “why are you moving?” I just had an agent come up to me and said, “I’ve been mentoring this young agent and I let her go on her own, she was meeting with a very nice man who was looking for properties and she tagged him on social media that she’d loved showing him around, and his employer was like ‘you’re looking at properties in another state — why?’” There are a lot of employers who spend a lot of time looking at their employees on social media!

What are your hopes for the next 12 months, and what will you be working on?

I want to see the impact of the Trump administration on housing, which I know is a controversial statement, but I’m very interested in what’s going to happen, whether it’s good or whether it’s bad, because I think it can go either way. We’re really at a point where a lot of things are up in the air when it comes to my role as counsel — do my clients in property management need to be paying significant attention to disparate impact or is that going to be rolled back? And when it comes to the cannabis industry, with Jeff Sessions gone, what is that going to look like, because that’s going to have a huge impact on portions of the industry.

We’re at the point now where we’ll start seeing administrative changes, and I want to see what that’s going to look like, and we need to be paying attention to what could happen. We’re going to start to see some of Ben Carson at the Department of Housing and Urban Development’s impact of the changes he wants to make, which I think is going to be very interesting from a legal perspective. And from a housing industry perspective — I just want to avoid a bubble.

Discover the opportunities in a changing market at Inman Connect New York, January 29 – February 1. Jumpstart 2019 with tactical takeaways, unlimited networking and thought-provoking speakers. Learn more.

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