Until recently, Illinois courts disagreed on how to serve process on residents of Cook County. Some Appellate Courts interpreted the law to require court appointment of a private process server when serving a resident of Cook County. Other Appellate Courts held that the county where the lawsuit is filed is the controlling factor to determine whether appointment is necessary. Thus, if a lawsuit were filed in DuPage County against a resident of Cook County, then court appointment would not be necessary.

The Supreme Court of Illinois recently resolved this disagreement in Municipal Trust and Savings Bank v. Moriarty, 2021 IL 126290. Service of process in Illinois is controlled by Section 2-202 of the Code of Civil Procedure. Moriarty involved a plaintiff who filed suit in Kankakee County against a defendant residing in Cook County. The Supreme Court of Illinois held that Section 2-202 is concerned with where process is served on a defendant. Therefore, for a private detective to serve process on a defendant in Cook County, he or she must be specially appointed by the court.

The ruling sheds light on a murky area of the law. It also adds to the expense of lawsuits, requiring further diligence by both attorneys and process servers. Special attention should be given to the location of defendants and its impact on service of process requirements. 

The current pandemic has noticeably altered the way most industries function. Prior to covid-19, Licensed Real Estate Brokers heavily relied on the ability to meet with possibly buyers/renters in person. Home tours were always in person, and open houses relied on the ability to invite many people into a small space to view the prospective house/condo/apartment prior to applying for it. The ability to meet in person has been heavily altered, and for a time especially toward the beginning of the pandemic, all in person meetings were effectively non-existent. Despite this, the show must go on, and Real Estate Brokers must make clever adjustments in order to reach their clientele and to navigate the housing market underneath these unprecedented terms.

One of the main differences and changes to the industry is the utilization of virtual tours. It was uncommon to organize a virtual tour for a possible buyer prior to covid-19, simply because it’s difficult for the person to gauge the space and to see the details as one would in-person. This type of tour might only occur for possible out-of-state individuals looking to move to this location. With the inability to avoid virtual tours, Real Estate Brokers have had to become adept at using technology to adequately and desirably show the space they are seeking to sell/rent out. There is also a different personal experience with virtual interaction rather than in person interaction, and the onus is certainly on the licensed professional to make the experience comfortable and easy for the interested party. This requires a distinct set of skills that the professional would have to quickly adapt to in order to continue to make money and generate happy clients.

The types of houses and amenities people are seeking out has also changed. With many individuals working from home for the foreseeable future, and some possibly permanently, having a space for a home office is absolutely vital. Because of the prevalence of working from home, individuals who would not normally seek quieter spaces are doing so, which can be a challenge for Real Estate Brokers who practice in places like Chicago. This certainly has encouraged and effectively required the professional to adapt to these particularities and to attempt to anticipate these particular needs from a prospective buyer/renter in the particular circumstances generated by the pandemic.

One tactic used by real estate brokers to advertise to consumers is through the use of “Coming Soon” signs, which advertise property that will be coming on the market. In order to appropriately use “Coming Soon” signs, you must have the appropriate authorization, as such signs serve as both notice of sale and an advertisement. Similarly to pocket listings, there are good reasons to use a “Coming Soon” listing: people may need to prepare their homes for sale or are waiting for their new homes to be completed. And also similarly to pocket listings, these listings create ambiguous ethical issues. 

“Coming Soon” listings inform the widest possible audience that the house, while not ready to be seen, is for sale and will be ready for viewings on a specific date. If a seller has not signed a listing contract, the house cannot go into the MLS. This means that a broker can show the house to their own list of potential buyers without consequences. It also means the house receives limited exposure, which could lead to less lucrative offers. Listing a home on the MLS is generally viewed as the best way to inform the vast majority of potential buyers of availability, and if a client seeks to sell their home for the greatest possible price, such interest may be jeopardized by the use of “Coming Soon” signs. This can place a broker in direct conflict with the ethical duty to promote and protect the best interests of the client.

While not an illegal way to sell a home, it does place the broker in a precarious position that skirts ethical and legal boundaries. Failure to be fully transparent about the pros and cons of using a “Coming Soon” listing to a client could result in perceived unethical conduct, putting the broker’s license at risk for disciplinary action being taken by the Illinois Department of Financial and Professional Regulation. If you find yourself facing potential disciplinary action, Williams & Nickl has successfully defended the licenses of hundreds of real estate brokers before the IDFPR.

A pocket listing refers to any property a real estate broker holds a signed contract with but does not advertise on a multiple listing system (“MLS”). While pocket listings have a somewhat negative reputation, there are many reasons why a broker and seller might prefer this method to the traditional listing: the property might not be ready to show, the seller might be subject to a listing agreement to only show to qualified buyers, or brokers strategically use pocket listings to increase an aura of exclusivity related to the home. While these are legitimate reasons, brokers would take care to exercise caution when using pocket listings to avoid any perceived unethical conduct.

If you choose to do a pocket listing, it must be in the best interests of the client. Realtors are ethically required to promote and protect their clients, which means a motivation to undertake pocket listings solely because it could result in a higher commission will raise red flags. In recommending a pocket listing to a client, the broker must thoroughly discuss the pros and cons with the seller and ensure the seller understands the benefits that are being waived by not showing the property on the MLS. By not listing on the MLS, the broker decreases marketing opportunities to reach a larger audience of potential buyers, and what is probably most relevant to the seller, may not bring in the highest possible price for the property. Because a broker is both legally and ethically required to act with the seller’s best interest in mind, a seller seeking the most money with the best terms must be fully informed before pursuing a pocket listing.

Pocket listings are not illegal, but they are viewed as an ethically grey area in the real estate business. In deciding to undertake a pocket listing, a broker must take extra steps to ensure the client’s best interests are being met. If a client ultimately feels like the broker did not receive ethical and adequate representation, a broker could face disciplinary action against their license by the Illinois Department of Financial and Professional Regulation. Williams & Nickl has considerable experience representing real estate brokers and defending their licenses before the IDFPR. If any troubles arise, please contact us for efficient and effective representation.

Recently, the housing market has seen an increase in business due to low-interest rates and rising prices. With the increase in business comes more juggling of clients and listings. Because real estate brokers have a duty to act in the best interest of their clients, they are held to higher standards than most. To ensure your conduct is viewed as honest and ethical, keep these considerations in mind:

Advertising and Social Media

Under the NAR Code of Ethics and Standards of Practice, social media is treated as a form of marketing, despite the difficult task of separating the professional and the personal. Because of this, anything you post on a social media account, such as Facebook, Twitter, or Instagram, must be accurate to the best of your knowledge. Any descriptions you make about a property must be accurate, so you should avoid any exaggerations or misrepresentations. Remember to clearly disclose your agency status and professional affiliation. This can be achieved by including the name of your firm in any posts you make.

Proper Property Disclosures

One of the most prominent complaints made by customers relates to improper property disclosures. It is a legal and ethical requirement that real estate brokers disclose all known material facts about a property to interested clients and failure to disclose could land a broker in serious trouble. While you are not obligated to know about latent defects or matters outside the scope of your license, it would be smart to direct your client to an appropriate source. Be sure to disclose all important information affecting the desirability or value of the property being shown.