For years, REALTORS® have debated the risks and merits of so-called pocket listings, "coming soon" listings, and listings that are marketed on private networks rather than being shared cooperatively through a local multiple listing service. Advocates say that sellers’ desire for privacy and advances in technology have led to the expansion of these off-market listings. Others believe that keeping listings off of the MLS reduces buyers’ choice, skews market data, and may not be in the sellers’ best interests.
Back in 2013, a National Association of REALTORS® workgroup issued a report saying NAR should educate brokers about the risks of discouraging the inclusion of listings in MLS without disclosing the potential consequences to sellers.
Now, an advisory board to the National Association of REALTORS® has developed a recommendation designed to foster broker cooperation and address the problems surrounding off-market listings. It has become known as the Clear Cooperation Policy proposal. Members of NAR’s MLS Issues and Policies Committee discussed the recommendation during the 2019 REALTORS® Conference and EXPO, and the NAR Board of Directors voted to approve the policy.
The group that developed the proposal, the MLS Technology and Emerging Issues Advisory Board, chaired by Bellaire, Texas, broker Shad Bogany, concluded that leaving listings outside of the broader marketplace excludes consumers, undermining REALTORS®’ commitment to provide equal opportunity to all. The Advisory Board’s Clear Cooperation proposal calls for all MLS participants to input any listing they market publicly (via websites, yard signs, mailers, Instagram, etc.), into their local MLS within 24 hours, enabling MLS participants to share the listing with the widest possible range of potential buyers.
MEMBERS CONCERNS ABOUT THE PROPOSAL
The Advisory Board recommended the proposal in September and sought member feedback via a REALTOR® Magazine article by Sam DeBord, NAR's President's Liaison for MLS & Data Management. From that feedback, a few recurring topics arose:
Timing: Many members have raised concerns about the requirement that any property marketed publicly must be listed within 24 hours. Members have suggested modifications, such as extending the time to 48 hours or changing it to one business day.
Privacy: Sellers need a choice to keep their personal matters private. The Advisory Board factored this point into the proposal, understanding that sellers should have the option to work with a professional while keeping their property sale and transaction private.
Brokerage Office Listings: The policy does not prohibit sharing within the brokerage office. Even “coming soon” listings could be permissible, depending on local MLS rules.
At it’s November 11th meeting, NAR’s Board of Directors approved MLS statement 8.0, also known as the Clear Cooperation Policy. The policy requires listing brokers who are participants in a multiple listing service to submit their listing to the MLS within one business day of marketing the property to the public.
NAR’s MLS Technology and Emerging Issues Advisory Board proposed the policy as a way to address the growing use of off-MLS listings. The Advisory Board concluded that leaving listings outside of the broader marketplace excludes consumers, undermining REALTORS® commitment to provide equal opportunity to all. The policy doesn’t prohibit brokers from taking office-exclusive listing; nor does it impede brokers’ ability to meet their clients’ privacy needs.
Following is the full text of the approved MLS statement 8.0
Within one (1) business day of marketing a property to the public, the listing broker must submit the listing to the MLS for cooperation with other MLS participants. Public marketing includes, but is not limited to, flyers displayed in windows, yard signs, digital marketing on public facing websites, brokerage website displays (including IDX and VOW), digital communications marketing (email blasts), multi-brokerage listing sharing networks, and applications available to the general public.
Rationale: Distribution of listing information and cooperation among MLS participants is pro-competitive and pro-consumer. By joining an MLS, participants agree to cooperate with other MLS participants except when such cooperation is not in their client's interests. This policy is intended to bolster cooperation and advance the positive, procompetitive impacts that cooperation fosters for consumers.
The public marketing of a listing indicates that the MLS Participant has concluded that cooperation with other MLS participants is in their client’s interests.
MLSs can adopt the policy at any time, but they must adopt it no later than May 1, 2020.
FREQUENTLY ASKED QUESTIONS
Why did NAR approve this policy? Brokers and MLSs from across the country asked NAR to consider policy that will reinforce the consumer benefits of cooperation. The MLS creates an efficient marketplace and reinforces the pro-competitive, pro-consumer benefits that REALTORS® have long sought to support. After months of discussion and consideration within NAR’s MLS Technology and Emerging Issues Advisory Board, this proposal was brought forth for the industry to discuss and consider, then approved by NAR's Board of Directors.
When will SWMLS adopt this rule and require SWMLS REALTORS® to comply with the mandates?
NAR is requiring that all MLSs adopt this rule by May 2020. The SWMLS Policy Committee and SWMLS Board of Directors will be working on adding this required language into the SWMLS rules and will post the revised rules to all SWMLS Participants 30 days before they go into effect and is expected to happen sometime before May 2020. Communications about this rule change will be sent to all Participants to better educate them on how they may need to modify some listing practices to make sure they stay in compliance.
Who made the decision that this policy was needed? NAR’s MLS Technology and Emerging Issues Advisory Board is comprised of brokers and MLS executives from across the country. Two dozen volunteers review industry concerns from a wide range of business and regional viewpoints. Potential policy changes are discussed within the group to create a positive impact on the industry and to address broker needs within the marketplace. These proposals move on to the 130-person Multiple Listing Issues and Policies Committee for consideration, and if approved, on to NAR’s 900 member board of directors for final ratification.
Does Policy Statement 8.0 require listings to be included in an MLS’s IDX displays? No. While listings that are displayed on the Internet must be submitted to the MLS and distributed to other MLS participants for cooperation, submitting a listing for cooperation within the MLS does not necessarily require that listing to be included in an MLS’s IDX display, if the seller has opted out of all Internet display. Per MLS rules, participants can work with their listing clients to determine an appropriate marketing plan, taking into account the client’s needs and full disclosure of the benefits to market exposure.
Does Policy Statement 8.0 prohibit Office Exclusives? No. "Office Exclusive" listings are an important option for sellers concerned about privacy and wide exposure of their property listed for sale. In an Office Exclusive listing, direct promotion of the listing between the brokers and licensees affiliated with the listing brokerage, and one-to-one promotion between these licensees and their clients, are not considered public advertising.
Common examples include divorce situations and celebrity clients. It allows the listing broker to market a property among the brokers and licensees affiliated with the listing brokerage. If office exclusive listings are displayed or advertised to the general public, however, those listings must also be submitted to the MLS for cooperation.
Does Policy Statement 8.0 require listings to be submitted to the MLS if they are advertised to a select group of brokers outside the listing broker's office? Yes. Policy Statement 8.0 applies to any listing that is or will be available for cooperation. Pursuant to Policy Statement 8.0, "Coming Soon" listings displayed or advertised to the public by a listing broker must be submitted to the MLS for cooperation with other participants. MLSs may enact "Coming Soon" rules providing for delays and restrictions on showings during a "Coming Soon" status period, ensuring flexibility in participants' listing and marketing abilities, while still meeting the participant's obligations for cooperation.
What if the listing isn’t ready to be shown? Are “Coming Soon” or “Delayed Showing” listings allowed under Policy Statement 8.0? The concept of “Coming Soon” and “Delayed Showing” can be achieved within the local MLS. Listings that are truly not ready to be shown can be shared with the MLS’s brokers and agents to create exposure while the property is being prepared for showing.
MLSs can also add clarity to the Coming Soon and Delayed Showing process by defining specific statuses and showing requirements if these listings are to be included in the MLS. The most common implementations do not allow for showings of the listing until its status is changed to Active, and any showings of the listing would immediately trigger that status change.
Does Policy Statement 8.0 require a broker to turn in every listing to the MLS within 24 hours of signing the listing? No. MLSs have different local rules as to listing turn-in times. If a listing is taken and is not yet ready to be marketed/shown, longer timelines for turn-in may apply in local markets. If a listing is marketed to the public, however, Policy Statement 8.0’s 24 hour turn-in timeline goes into effect.
Has this kind of policy been implemented somewhere already? Similar policies have been enacted in some marketplaces. MRED in Illinois has a similar policy in place. The organization has produced a white paper explaining the benefits to the marketplace(link is external).
Bright MLS on the Eastern seaboard has a similar policy in effect.
Northwest MLS in the Seattle area has had a policy disallowing the pre-marketing of properties since 2013. Its intent could be viewed as similar to Policy 8.0 in terms of encouraging greater participation and inventory within the MLS.
Does this policy affect commercial listings? Residential real estate and commercial real estate are transacted with significant differences. This policy only affects residential real estate.
Stay tuned in 2020 for additional information about this mandatory policy change. If you have any questions about this policy please contact the SWMLS Help Desk at mls@gaar.com or 505-843-8833.
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