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Large multiple listing services across the country are scrambling to figure out how they will implement a new MLS policy from the National Association of Realtors and what the impact of it will be on their agent and broker subscribers.
In the wake of NAR’s decision earlier this week to keep the Clear Cooperation Policy and enact a new policy offering a “delayed marketing exempt listings” category, several Realtor-affiliated MLSs appear optimistic about NAR’s choice to keep CCP and lauded the new listing category for offering seller “flexibility.”
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Still, concerns about the new policy’s potential repercussions for buyers and potential antitrust litigation risk lurk in the background. The new category would expose listings to MLS subscribers but not to buyers themselves unless they work with a brokerage.
Discrimination against buyers who choose not to work with an agent?
In January, California Regional MLS CEO Art Carter wrote an op-ed in which he emphatically stated that “CRMLS will not support, nor participate in an agreement, plan or scheme to hide available properties that are for sale from potential buyers who choose not to hire a real estate agent.” CRMLS is the largest MLS in the nation at some 108,000 subscribers.
Carter pointed out that the rules governing Internet Data Exchange (IDX) policy, which is how listings appear in virtually all portals, “were established as part of a settlement agreement reached between NAR and the Department of Justice, which emphasized the importance of ensuring consumers have the same access and knowledge to available property listings as subscribing agents have in the MLS.”
A 2008 consent decree between NAR and the DOJ targeted IDX and Virtual Office Website (VOW) policies the federal agency alleged excluded brokers who adopted innovative business models. That settlement expired in 2018. However, the DOJ is currently investigating NAR and its MLS policies, including the CCP and related rules, which means the threat of legal action looms large over the industry as a whole.
Art Carter
“Requests made by market-influencing brokers to exclude their properties from IDX feeds, thereby withholding them from unrepresented buyers, could expose CRMLS to potential litigation from consumer advocacy groups and plaintiffs’ attorneys,” Carter wrote in his op-ed.
“A buyer who decides not to pay the costs or fees associated with hiring a buyer’s agent is entitled to full and fair access to every property available for sale, across the same platforms, and websites that are accessible to represented buyers.”
Carter also stressed that “CRMLS will not establish a Private Listing Network that is only accessible to CRMLS subscribers” because “[s]uch a system would clearly disadvantage consumers who choose to not work with a real estate agent, as they would have no access to the listed inventory.”
Some MLSs, such as MRED, have opted to create such a network, but Carter emphasized the litigation risk of such a move.
“The only way for these buyers to view available for sale properties would be to hire a CRMLS subscriber real estate agent,” Carter wrote.
“The case of an MLS making rules that force consumers to use a real estate agent to see properties that are for sale will be extensively litigated, and implementing such a policy could expose CRMLS to significant antitrust liability.”
Inman reached out to Carter after NAR’s announcement, but CRMLS spokesperson Nicole Aguilar indicated that the MLS was not ready to offer its thoughts on the new policy.
“As the announcement is still fresh, there are many details and scenarios that need to be evaluated,” Aguilar said in a statement.
“We will be working closely with leadership and our agent/broker community to explore options that will provide the best outcome for brokers, agents, and consumers. Once we have a clear direction on how we will implement the new policy, we will be happy to share the details.”
Cindy Miller
Cindy Miller, COO for North Texas Real Estate Information Systems (NTREIS), which has about 53,000 subscribers, told Inman that MLSs should offer buyers, not just sellers, a transparent marketplace.
“In my personal opinion, we need to also ensure a transparent marketplace for potential purchasers and need to keep that in mind whenever adopting policies,” Miller said in a statement.
“MLS rules only govern what our Participants can do and, by Participating, they have agreed to a cooperative environment; that environment continues to provide the broadest marketplace for both buyers and sellers. Insofar as any carved-out exceptions are designed to accommodate a property owner’s unique circumstances and include informed consent, then we continue to have that broad, transparent and fair marketplace.”
MLSs’ deadline to implement
MLSs will have the task of deploying the new listing category and the processes around it by a September 30 deadline. Local MLSs will have to decided how long listings can be under the delayed marketing category on their platforms — a period NAR encouraged MLSs to determine through consultation with brokers in their market. NAR also left it up to MLSs to decide whether days on market will accrue and whether price change history will be shown while listings are under the delayed marketing category.
Miller noted NTREIS already has a Coming Soon status that “accomplishes much of the Delayed Marketing requirements, so we will certainly look towards possible modifications of that existing policy as well as the potential for a new status if deemed appropriate.” She added that she could not speak to what specific actions the organization will take without further input from its leaders and stakeholders.
Dionna Hall, CEO of BeachesMLS which has about 43,000 subscribers in Florida, also noted that her MLS has a Coming Soon status that closely resembles the new policy.
Dionna Hall
“The new policy is not that big of a departure from options that are already available to BeachesMLS Participants and their clients,” Hall said.
“For years we have offered a Coming Soon status that allows sellers and their brokers to test the market without calculating DOM, without the requirement of including photos, with optional syndication.
“The status has been very well received, it is heavily used – we monitor the stats and can see that broker double-dipping on transactions in Coming Soon status is actually slightly lower than those that initially enter the system in Active status. Brokers have always had the option in BeachesMLS to withhold the listing from being disseminated to the internet.”
Asked what the rates of broker double-dipping are for the different statuses and how many BeachesMLS listings go into Coming Soon status before becoming Active or Sold, Hall replied, “[S]tats are always fluid, changing and are not static. To that end, what I can tell you is that over the years Coming Soon listings go under contract sooner and close sooner than listings that originally enter the system as Active status.”
Hall said BeachesMLS considers the new policy “a modification of sorts to CCP” that adds a new marketing option and “provides sellers flexibility and customization of their property marketing.”
“My initial thoughts are that it’s definitely a step in the right direction,” Hall added. “It puts both control of marketing the property in the hands of the seller and their broker while making it available to the professional real estate community that represents clients in a global capacity.”
Regarding Carter’s concerns about buyers and potential litigation, she said, “I think this policy is an attempt to bring transparency to listings that would have been pocket listings. I believe pocket listings are the true detriment to consumers because sellers frequently don’t receive top dollar for their property/investment and buyers are deprived of the ability to see all available properties.”
Asked whether the new policy would establish a private listing network only accessible to MLS subscribers, Hall said, “I believe most sellers will want to expose their listing to the full market because as studies have revealed, sellers leave money on the table when they don’t expose their listing to the full market.”
She said BeachesMLS’s team was still working on identifying the “details and downstream components” of the policy change. She added that the MLS will embark on a large-scale campaign to consult its more than 5,400 brokers with varying business models and sizes on the changes they would like to see implemented.
Currently, BeachesMLS’s Coming Soon delayed marketing period is 21 days. Whether it stays that way and how DOM and price change history will be handled will be determined by the MLS’s board of directors with input from brokers, according to Hall.
Difficult to tell the impact
The Clear Cooperation Policy requires listing brokers to submit listings to Realtor-affiliated MLSs within one business day after they’ve been publicly marketed. The new policy, Multiple Listing Options for Sellers, continues to require listing submission in MLSs but allows listing brokers to keep listings off of IDX sites. The MLS executives Inman reached out to appeared optimistic that the change would lead to fewer pocket listings while offering more choices to sellers.
Merri Jo Cowen
“Stellar MLS stands firmly behind the CCP policies and requirements and applaud NAR for taking the time to listen, learn and assess the value of the Policy to our agents and brokers and for the continued transparency for consumers,” Stellar MLS CEO Merri Jo Cowen told Inman. Stellar has about 84,000 subscribers, largely in Florida.
Asked for her thoughts on the new policy and category, Cowen said, “We have not fully digested everything yet, though in principle we do see the value of providing more owner/seller choices in the marketing of their properties while expanding access to MLS subscribers working with buyers to locate properties that meet their needs.”
Regarding Carter’s concerns, Cowen emphasized that the risk of litigation is ever-present.
“CRMLS has made their position known and we fully support their right to establish that position,” she said.
“One thing that is always clear in our current environment – there is always a risk of litigation from one party or another with both existing policy and new policies. Each MLS must decide what their position is, as CRMLS has, on the merits of their research and concerns.”
She said it was difficult to tell what impact the new category will have.
“On its face, the new category seems to enhance the ability for agents in the marketplace to have visibility into listings that are not yet publicly marketed, extending the pool of available listings that their buyers may be interested in,” Cowen said.
“In saying that, we know that there will be varied positions from our brokers and we will be seeking their feedback as we work through implementation of the new requirements.”
Asked about the potential for the new policy to create private listing networks for MLS subscribers, Cowen said, “While we haven’t fully absorbed the new policy and potential ramifications or long-term unintended consequences, we will move forward affirmatively with the new policy and it’s requirements.”
For Stellar MLS, this means adding a new status because the MLS does not currently have a Coming Soon or similar status. Stellar will also seek feedback from its brokers to decide on the length of the delayed marketing period, according to Cowen. The MLS has not yet decided whether DOM will accrue or whether it will show price change history during the new status, she added.
The new policy requires listing brokers to have sellers sign disclosure forms if they choose to have their listing sold as an office exclusive or under the delayed marketing category. Stellar already requires subscribers to file a seller disclosure form with office exclusives and listings the seller decides to withhold from the MLS for a short time while they prepare the property, according to Cowen.
“[W]e will integrate the new requirements and option into that document to allow Sellers and their agents/brokers to work together to decide what works best for them,” Cowen said.
‘Flexibility’
Cowen wasn’t the only MLS exec who applauded NAR’s decision to keep the CCP.
“OneKey MLS is fully supportive of CCP, and I view NAR’s decision to preserve it as a positive and constructive step forward for both real estate professionals and consumers,” OneKey MLS CEO Richard Haggerty said in a statement.
“Regarding the new category of ‘delayed marketing exempt listings,’ I believe consumer choice is essential — but that choice must be informed. If a seller chooses to pursue the delayed marketing option, the policy appropriately requires a signed disclosure confirming the seller’s informed consent to waive the advantages of immediate public marketing via IDX and syndication.”
OneKey MLS has about 45,000 subscribers. Its leaders will meet “soon” to review the specifics of the policy and the options available, according to Haggerty.
“I anticipate that member input will be an important part of that process,” he said.
Brad Bjelke
Brad Bjelke, CEO of UtahRealEstate.com, echoed other MLS execs in saying the new policy would “add more flexibility for the marketing of properties by sellers and their listing agents.”
“Time will tell how much it actually will be used in practice, but I like that we are adding more options for our brokers and their clients,” Bjelke said.
UtahRealEstate.com has about 19,000 subscribers and its platform was developed in-house, which means it can make changes quickly, according to Bjelke. The MLS has already started talking to its brokers about the new status and potential policy options.
“We will be gathering feedback from our membership over the next 30 days so that our Board of Directors can move forward to establish the timelines, days on market calculations, etc.,” Bjelke said.
“We will have the seller disclosure certification available as an online form to our members so that it can be filled out inside the MLS and then entered into our system quickly and efficiently.
“We intend to have our rules finalized and our technology implemented within the next 60 days. Our MLS prides itself in leading the way, and we intend to do that by moving quickly to get this policy implemented.”
Some MLSs won’t have to make big changes to comply with the new policy. Bright MLS, the nation’s second-largest MLS with some 100,000 subscribers, told Inman its platform already offers the options NAR is suggesting. According to Bright MLS spokesperson Christy Reap, Bright has allowed subscribers to choose “Internet No” in its system for nearly two decades and removed a previous time limit on Coming Soon listings last summer.
“This week’s announcement from NAR affirms what innovative MLSs like Bright know — no two home sellers are the same, and brokers and agents need flexibility to best serve their clients,” Reap told Inman in a statement.
“Our position has never been to dictate brokerage business models.”
Similarly, Austin Board of Realtors’ Unlock MLS, which has about 19,000 subscribers, said it had announced “Flex Listings” earlier this month — set to debut this summer — that keeps listings in the MLS while allowing delayed marketing.
“We’re actively evaluating how our existing Flex Listings framework aligns with NAR’s new guidance and will continue engaging stakeholders as we determine the best approach for our market,” Unlock MLS said in a statement.
“Our goal is to maintain a system that offers consumer choice, protects cooperation and reflects the practical needs of Central Texas real estate.”
In the statement, Unlock MLS and ABoR said they viewed the new policy “as a welcome step toward more flexibility and nuance in the marketplace.”
“While CCP has long supported transparency and fairness, it doesn’t meet every seller’s needs, particularly those with privacy concerns or strategic timelines,” they added.
The trade groups declined to comment on how the new policy will affect Flex Listings’ launch.
UtahRealEstate.com, Bright MLS and Unlock MLS did not respond to questions regarding the new policy’s potential effect on transparency to buyers or litigation risk.
