Why am I writing about criminal statistics in a real estate blog? Am I trying to encourage illegal behavior? I’m not, but now I’m wondering if I should actually publish this… “Real estate blog sparks national surge in crime….” Maybe I should politely ask that, when you have a minute, you consider not engaging in criminal activity? Thanks! Anyway, the reason I’m writing about this statistic is to point out that just because something is illegal does not mean that something will automatically be done about it. Also, just because something is illegal doesn’t mean that anyone even knows it’s illegal.
What is legal and what is common practice often operate in separate worlds, until there is a lawsuit. For example, Georgia’s real estate laws create an interesting dilemma for Georgia agents who are also members of the National Association of REALTORS®, and who must follow the NAR’s Standards of Practice. In Georgia, it is common for real estate agents to act as fiduciaries to their clients, especially because the NAR states in their Standards of Practice that real estate agents are fiduciaries (Section 11-2). However, per Georgia law, real estate agents are not fiduciaries with any party. Section 10 of Georgia Code states that “A broker shall not be deemed to have a fiduciary relationship with any party.” So why do so many Georgia brokers act as fiduciaries to their clients?
This is precisely the question explored by many Georgia attorneys. Georgia Association of REALTORS® General Counsel Seth Weissman states that many Georgia real estate agents learn national common law concepts in obtaining their licenses, which involve agents as fiduciaries. In almost every state in the country, real estate agents are legally fiduciaries–even the NAR states as much in their Standards of Practice. However, the NAR’s Standards of Practice are not federal or state laws. This is an example of how industry practices do not always align with local statutes.
The NAR’s Standards suggest that all NAR members must be fiduciaries, but the phrasing is a bit ambiguous (in my opinion). Section 11-2 says that the NAR’s rules will be interpreted “considering… the obligations of a fiduciary.” Does this mean that all NAR members must be fiduciaries, or that fiduciary duties will be generally “considered” when evaluating agent conduct? It seems reasonable to assume that this means all NAR members must act as fiduciaries to clients, though perhaps I’m interpreting this incorrectly.
One way I can imagine this issue being problematic for a Georgia agent is if a client assumed a fiduciary relationship because their agent belongs to the NAR, and NAR rules suggest that all NAR members are fiduciaries. It could be argued that, despite Georgia law, the very act of saying “I belong to the NAR” is akin to saying “I am your fiduciary,” which could mean that the broker was unintentionally misrepresenting their relationship with their client. 
To be clear, I don’t have the answers to these questions, and any answers that exist may shift in the future based on evolving case law. The reason I’m leaning into all of this legal ambiguity is to demonstrate that whether something is legal is not at all black-and-white. Having good intentions and some basic legal knowledge is often not enough to actually avoid illegal activities. Staying compliant with laws and practices takes a lot of constant, philosophical legal thinking and questioning.
As an agent in any state, you may have access to legal advice through your association, though your firm, or otherwise. If you don’t have this type of access, using an online lawyer for specific questions is fast and inexpensive, and is a good investment in your career.
https://projects.csgjusticecenter.org/tools-for-states-to-address-crime/the-accountability-gap-unsolved-violent-crime-in-the-united-states/
https://www.hankmillerteam.com/blog/are-real-estate-agents-in-ga-fiduciaries.html
https://www.nar.realtor/about-nar/governing-documents/code-of-ethics/2024-code-of-ethics-standards-of-practice
https://www.rmaaresources.com/broker-corner/brokers-in-georgia-do-not-owe-a-fiduciary-duty-to-clients
63% Of Crimes Go Unsolved
