The Referral Responsibility: Are You a Man Or a Mollusk?

Classic risk aversion for the liability-phobic mandates that an agent make no actual referral to an auxiliary service provider in the course of a Real Estate transaction. Need a lender? Here are the names of three professionals. Need a home inspector? Sift through this stack of business cards and let me know who you choose to hire. The very thought of shimmying out on a limb to recommend a capable practitioner sends shivers up the clenched backside of some in our ranks. Cold anticipation of the potential commissionectomy that attends a referral gone bad trumps the tug of responsibility.

No businessman walks around looking for a financial colonic, but the very real potential for having his inner sanctum legally hollowed out exists in each and every transaction he undertakes. As such, it has become customary for many to simply ward off as much exposure as possible by abstaining from any form of guidance that can later be labeled malfeasance or conflict of interest. Heaven knows, if the contractor you recommend for repairs screws the electrical pooch, any rabid attorney worth his salt will gleefully encourage the client to pursue the deep pocketed brokerage (and agent by proxy) as well as the contractor for damages. Why put yourself on the line by recommending a home inspector when the potential for blow-back on a balky A/C unit can put you directly in the cross hairs? For that matter, why even bother to attend the inspection if the due diligence can be misconstrued for interference? Why attend closings if your review of the documents places increased responsibility upon your shoulders for their accuracy?

Because risk deflection is not my job.

My job is to fulfill my fiduciary obligations to my clients to the very best of my ability. That means recommending pros who have proven their worth to me countless times in the past, rather than crossing my fingers and hoping my clients receive competent service. That means attending inspections to physically see any defects, so as to better advise my clients and argue their cases. That means attending the closing to ensure that the settlement statement jives with the negotiated terms of the contract.

Doing the eeny-meeny-miney-mo thing with a referral does not serve the client, and neither does calling in “neutral” to the appointments that demand an ally. Such laissez faire Real Estating is designed only to mitigate the agent‘s risk. While it is understandable, given the litigious nature of our culture, it’s just not how I roll. You need a lender, I give you the name of the best lender I know. You need a home inspector, I give you the name of the most thorough one in the rolodex.

I would argue that recusing oneself from the crucial junctures and decisions of a transaction is not only negligent, but self-defeating. As the surest invitation for catastrophe is to stand aside and watch the transaction happen, the best defense is, and always will be, a good offense. Fixing potential problems, rather than hiding from them, has kept my clients happy, and me out of legal hot water to date. Active involvement serves the interests of all parties.

I wear my big boy pants to work every day. I put them on with the knowledge that certain forces will always be beyond my control. Secure in that understanding, I’d much rather stand behind the repercussions of my actions than my inactions. Standing on the sideline, not attending inspections & closings, carefully avoiding opinions … seems to me that ascribing to the Caspar Milquetoast model of risk avoidance is, ironically, the surest route to the ruin that one would desparately scramble to avoid. Decreasing the standard of care for the client is akin to an RSVP for trouble.

And trouble never sends its regrets.

Need a Referral to a Local Professional? Give me a ring. I’m not afraid of my own recommendations.

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  • If you verify the license status of the professional you are referring; and try to determine that they have their own E&O policy, then you are doing more than almost anyone else out there. You have exceeded the standard of care. This (albeit common) fear that you can be sued if you refer a client to someone who winds up doing inferior work for your client, is so much hooey. The Plaintiff would have to prove you knew this person did bad work in order to prove “negligent referral.”  If you give them a short list of people you have actually checked out, and include a disclaimer: “We have heard good things about these folks and have had good experience with them, but we cannot be responsible for the quality of work done by unrelated 3rd parties over whom we have no control. Please interview each of them yourself and select the one you determine is best suited to your needs.”

    And quit worrying about the referral, already!
    Cordially,
    Robert N. Bass, Esq. Broker Defense Attorney

  • Perfectly stated, Bob. 

  • Oh man…you NEVER disappoint 😉 Any subject discussed is thoroughly measured in ways most of us never even consider. Always a  pleasure and usually chock full of humor too!

  • Thank you, fine sir.

About the author
Paul Slaybaugh is here to sell houses and chew bubble gum. He's all out of bubble gum. More About Me >>>

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