Real estate professionals can — and should — help FSBOs and expireds make the best possible decisions about their real estate best interests. Coach Darryl Davis dives into the ins and outs of the laws surrounding the Do Not Call list.

Illustrator Pauline Baynes once said, “Believe what you like, but don’t believe everything you read without questioning it.” In these days when misinformation is rampant, this statement is truer than ever.

There is even misinformation in our own industry that can be detrimental to real estate agents. One big question we get almost weekly in our coaching calls is: “Can I call for sale by owner (FSBO) and expireds that are on the Do Not Call list and during a state of emergency?”

Before we dive in, a disclaimer: No matter what I am saying here, always follow your broker’s policy. In fact, this is the hierarchy of power whose policies you need to follow: 

  • Department of Licensing
  • Your broker
  • Everyone else (including me)

In the absence of any policies regarding calling FSBOs on the Do Not Call list, I would like to offer my professional opinion.

We have done a lot of research and we’ve spent a lot of money on lawyers to look into this issue so that we can give advice in confidence on the legal and ethical question of whether agents should call FSBOs or expireds on the Do Not Call list – or during a state of emergency (especially for our New York friends). I want to take the time to clarify this issue for agents because, frankly, not calling is hurting both agents and homesellers.

Legally speaking

When you really dive into the law, definitions and verbiage surrounding this issue, it is very clear on solicitation.

Basically, solicitation is either selling something or asking for something. When it comes to selling, Webster’s Dictionary gives examples of asking for donations to help victims of an earthquake or soliciting for new memberships/subscriptions. In other words, a transaction of some sort, where money is exchanged for something in return.

Selling stocks or a magazine subscription could be other examples of this.  In this regard, the Do Not Call law does not apply to us because there is no transaction. We are not asking for money over the phone to provide a product or service.

When asking for something, Webster’s Dictionary also gives examples of a company soliciting for bids from various firms or comments from readers. When it comes to asking for something, an FSBO is actually the one soliciting. They are advertising their phone number in a public forum, soliciting a phone call. FSBOs are the opposite of unsolicited as referenced in the Do Not Call law. Therefore, that law does not apply to FSBOs.

What if the FSBO ad says no agents? 

Here’s my take: A buyer has hired you and given you the authority to find them a house and help them in the process of buying real estate. It is your fiduciary responsibility to go out and find them a home.

You might be thinking, “But, Darryl — the rule is that the buyer has to be interested in that particular home.” I want you to think for a moment. How can your buyer possibly know whether they are interested in a particular home if they have never seen it? 

How often have you had a client who bought a home that was completely different from what they thought they wanted? I know I’ve had buyers who started out adamant about wanting a four-bedroom ranch who ended up with a two-story, three-bedroom colonial. The only thing that truly remained consistent was the buyer’s price range.

Don’t buy into “no.” Find the best available homes in your buyer’s price range and make the calls. Consider it your fiduciary responsibility to ensure that your client is exposed to the best homes for the money in your market. 

By the way, when I say “client,” I mean that you don’t just have lookers. You have a signed buyer’s agency agreement. Make this the year that you stop driving people around who have zero loyalty to you or your business relationship. 

Let’s talk about expired listings

The Do Not Call list states that you can call someone who is on this list if you had a prior relationship with that person. Again, you can call expireds because you have a prior relationship with them. When a homeowner lists their home on the MLS, all agents are then given permission to show that listing to sell it. Since the seller was in the MLS system, that is your prior relationship, making it completely appropriate to call them once their listing has expired.

The takeaway

Here is my main point: When it comes to FSBOs, the owners really are vulnerable to making mistakes that can cost them dearly in time and return on investment. They need you — especially in situations where there are multiple offers and many potential negotiation problems. I believe that it’s our responsibility in our communities as licensed professionals to help homeowners avoid making these mistakes, or the mistake of trying to sell their home on their own.

For that reason, I encourage you to discard the notion that calling FSBOs and expireds is illegal or unethical. Make your calls. Find out what is important to these sellers, what they are committed to, why they are moving, and then work out what you can do to help make all of that happen for them.

Buyers need to buy and sellers need to sell, which makes you a real estate matchmaker! It’s about bringing these folks together. When we operate from a high level of integrity and service, with the attitude of coaching — not closing — everyone benefits. 

Our job as a real estate professional is to serve the greater good; to help people make the most informed decisions about their real estate best interests. Know in your heart and head that homesellers need representation and expertise more than ever to avoid losing return on investment, to protect their family and to steer clear of legal trouble. Then go out and serve. We’re here to help. 

Darryl Davis is the CEO of Darryl Davis Seminars. Connect with him on Facebook or YouTube

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