Beware No Trespassing (even if you do have a keybox)

Learn something new every day. Can an agent access a vacant home with a keybox, without an appointment? What if that agent represents a buyer under contract on that home?[photopress:no_trespassing.jpg,thumb,alignright]

I had to learn this answer the hard way a couple of years ago. Here’s what happened:

I sold a vacant home in Issaquah to clients subject to inspection. During the inspection, it was noted that the furnace had a very high level of CO (92%) and needed to be replaced. Seller (an attorney) would not replace the furnace. Buyers decided to replace it themselves before they move in and waived the inspection contingency.

Given that it takes a few weeks after ordering a furnace to get it installed, I, knowing that the house was vacant, met the furnace installer (call him Bob) at the home for measurements. No, I did not make an appointment. During the measuring, the furnace guy TAKES THE FURNACE OUT OF COMMISSION! Of course, it was in the dead of winter and the weather was below freezing. Furnace guy says that by state law, he is required to decommission a furnace if it is a safety issue and considering that the furnace was burning outside of the combustion chamber, it quite obviously was a safety issue.

Now we have a vacant house with no heat, with a seller who refused to pay for a new furnace with the inspection period waived and with me and my furnace guy Bob having entered the home without an appointment. Listing agent is furious with me and calls his broker who calls his attorney who calls my broker who calls me and says that, Guess what, technically it IS considered trespassing to re-enter a home that is pending even with the pending buyers or buyer’s agent.

The solution was simple enough. Seller had the furnace installed (immediate when in an emergency situation) and buyers paid for it at escrow. And I learned a new lesson. The hard way.

38 thoughts on “Beware No Trespassing (even if you do have a keybox)

  1. I hear you, Eileen, I’m surprised how many buyers actually start feeling that since they have an offer on the place that somehow they have ownership already and they expect the seller to lay down and do whatever they want or to give them whatever access they want. We usually negotiate or discuss access in cases where there are big issues like this one. I had a property where my clients wanted to see what the leaking damage was that had come up during the contract so they could determine if it would be a big insurance issue that might impact their financing.

    Thanks for sharing!

  2. Since you’re an inspector, Bruce, had you ever heard of a furnace being put out of commission? When you inspect and find a 92% CO level, do you have any obligation, like the furnace guy did to decommission the furnace?

  3. Eileen,

    They do this in my area but I’ve never seen one “decommissioned” on the spot. Inspectors “red flag” them and send a report to the natural gas provider who then sends a letter to the homeowner telling them to replace it in 30 days or the gas goes off. I suppose a dangerously high level of CO may call for more severe action but I’ve never seen it happen.

  4. Thanks for the info. I’d never heard of it, either. I don’t think in 30 years in the business I’d ever come across this. The particular inspector stuck a gauge right into the ductwork to measure the CO level. I’d never seen that done either in hundreds and hundreds of inspections I’ve done. I was nervous when I saw him do that but he duct taped over the whole. I don’t know how many inspectors actually pierce the duct work to make a test. It was, however, the furnace guy that decomissioned the system.
    Do you always use a moisture meter in a bathroom?

  5. oops, I got you mixed up with Bruce above.
    Since you’re an agent have you ever entered a vacant home under your contract without telling the LA first? Measure for drapes or frig, etc?

  6. I saw a $5,000 fine posted recently for an agent who let his buyers into a vacant house and left them there. He went off to an appointment while they measured, etc. either planning to come back or telling them to lock up. The owners came by, even though they didn’t live there, and were very angry. Agents was slapped with a $5,000 fine from the mls.

    Not sure if he had to pay the whole fine. Sometimes they make you pay $2,500 and defer $2,500. If you have any more violations they charge the new violation fine, and bring the $2,500 back from the first offense at the same time.

    If the listing says 000-000-0000 for “phone to show”, I don’t think a call is necessary. But some agents remove the lockbox early on to prevent too many trips to the house by the future buyers during escrow. There have been instances around the country where buyers have started painting or remodeling before close of escrow. They figure, why not…it’s vacant anyway. So removing the lockbox might be a good safeguard, requiring permission to access.

  7. “So removing the lockbox might be a good safeguard, requiring permission to access.”

    When I go out to put up the “Sold by Odysseus” sign I remove the MLS lockbox. The wisdom of that practice was substantiated for me last summer when I was out with a shopper. We had gone in to see a home that hit her criteria on paper, but she didn’t like it. There was a similar but nicer looking house next door with an MLS lockbox on the doorknob and my client asked for me to take her in to get a look. I had previously explained under a similar circumstance that just because a house in a neighborhood that she liked was listed for sale didn’t mean it hit her criteria — and that would have been the reason we hadn’t made a arrangement to see the house (as I said, this particular client was a shopper and I must admit not strong in wit). But in this circumstance there was not even a sign in the yard so I couldn’t call the lister. I explained that entering the house without indication that the house was listed would be trespassing, even though the house was obviously vacant. She and her mother were disappointed that I was such a stickler — they told me that “other Realtors had always let them go in to take a peak”!

  8. Agree that if you don’t know anything about a house especially one with no sign on it, I’d guess the buyers were lying cuz can’t imagine an agent popping in without calling first when there’s no sign. But it is so tempting to “pop” into a vacant active listing without calling first.

    However, I’ve learned my lesson so never do it anymore.
    Ardell suggests that if there is 000 in the PTS field that it would be ok, but we’re talking here about being out in the field and having no numbers to call. I guess we just take the buyer comments and play it safe.

    The solution, I think, would be to always have a wireless laptop with you. I have such good luck with my Sprint card, that I simply left my laptop running on the back seat last time I showed, so I will never again be in the dark about a listing.
    By the way, I’m considering getting rid of cable at home and just using the sprint card. You can get a modem and run two computers!

  9. Eileen, our listings always indicate whether or not an appointment is required. A local police officer once told me that entering a “by appointment” listing without an appointment could be considered unlawful entry. I don’t go unless I’ve confirmed with either the seller or the listing agent.

  10. Well we go in houses all the time without calling first when the instructions say PTS 000-000-0000. We have to leave the lockbox on for awhile for the appraiser and home inspection. Maybe we can change the 000-000-0000 Phone To Show to the agent’s phone number once it goes STI. That way the agent is violating the showing instructions if they enter without calling at that point. But not likely I’d go back and read the showing instructions once we are in contract…so maybe that wouldn’t help.

    I don’t see a good reason to change the way we do it now just because it was a problem once. Would be a huge inconvenience to the buyer client to say no they can’t measure anything. Though I do try to have them do all of that during the home inspection or the same day as the home inspection.

    I think it was just an odd situation there, and I doubt most inspectors would shut down a heater in the middle of winter. When I’ve had an issue with a gas heater, we call the gas company and they may shut it down, but not the home inspector.

  11. Ardell, it wasn’t an inspector it was Bob from the furnace company that shut it down. The inspector called out the furnace as being unsafe, but it was when I went back in to get a bid in said vacant house (which I had under contract) that the furnace was decomissioned. I wouold assume that most sellers, having seen an inspection report with a 92% CO level, and fire burning outside the combustion chamber, would have checked into for themselves as it could have burned down at any minute. Probably because the lawyer, seller knew he had liability is why he cooperated to have the furnace replaced immediately, even though my buyers paid for it.

  12. Ardell, I had a client on site once that put his own laminate down on a kitchen counter in a house being built. Just went in,put down the lam, didn’t tell me, put brown paper and tape over it and left. Couldn’t believe it. The builder was furious and pulled it all out.
    I’m buying a new construction home in Issaquah and it is boarded up and locked tight over the weekends cuz people do such dumb stuff. I just want to go in cuz it’s so fun to peak!

  13. I sold a house last year in Los Angeles. The buyer was lined up but there was no contract. I locked the house, left the key with my trusted neighbor and headed out of state, confident that my realestate agent would take care of things. Ha! I got numerous calls from myneighbor telling me that she had found the house & gates not only unlocked, but open. I complained to my agent, who denied knowledge. I told my neighbor not to go back into the house to close & lock it any more, but just to call the cops. Shorten the story: the buyer went in and did CONSIDERABLE demolition to the house while I was still making the mortgage & insurance payments and was still legally responsible for it. Again I complained to theagent, who was working both ends of the deal. He thought I was being unreasonable, that the buyer was just a man (I’m an older woman) who was eager to get to work on the house so he could move his family in before the holidays. The deal finally went through (financing troubles for the buyer)–and the buyer FLIPPED the house! The agent had the temerity to ask me for a letter of recommendation for his portfolio. NOT HAPPENING, needless to say.

  14. Yikes, Lynda, that is so wrong on so many levels. If it were me, I’d take this up with the State Department of Licensing as well as the local MLS board. What he did should not be tolerated and that is sinking to a new low. I hate it when that happens and you should never have had to be a party. So I apologize for the illegal acts of this agent.

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