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How many ways can you slice an apple? No matter how you do it, you still need a knife and a cutting board, and, at the end of the day, the apple is cut into pieces. The size of those pieces may vary, but the apple is cut up.
The American Real Estate Association’s recent proposed Clear Cooperation Policy is like cutting an apple. You still use a knife to achieve the same outcome even though the pieces may look a little different. It doesn’t offer anything new, and like many of the solutions being bandied about, it brings to light existing issues and challenges that arise from trying to figure out a new way forward.
The American Real Estate Association’s proposal
The Association’s proposal has listings going into MLS, sellers having the option to “opt into” public portals as well as flexibility to not have to go into MLS within one day of a signed listing agreement; it sounds like a convoluted mess waiting to happen, adding more confusion to an already confusing business.
As it is, we are still having to explain buyer representation and compensation options when working with buyers and sellers, and there is already enough confusion and some different requirements as interpretations vary between the settlement, local MLS rules and state law if buyer representation is required in those states.
Now, you may have umpteen different rules about when a property has to go into MLS. If you belong to more than one MLS in your market or have a data share agreement with one MLS being part of others, you can see the confusion that may begin to ensue because of different rules for each MLS.
While we have the ability to opt out of our listings feeding to portals if we don’t want them to appear on those websites, the reality is that most agents aren’t checking that opt-out box because when listing a property in the MLS, the seller wants their listing to be able to be found everywhere. This has been one of the benefits we have touted of putting the listing in MLS.
Perhaps our industry needs to be re-oriented to this feature, but in reality, agents are focused on getting their property the most attention possible when listing it in the MLS.
Sellers who want to be off-market have been restricted to a seller exclusion from MLS, which allows the property to be marketed within the listing agent’s brokerage but not to the broader public or agents taking matters into their own hands and doing whatever they can get away with.
That may be posting in social media groups, blasting a flyer out, sharing the property with a select few, etc.
Because our industry has not been wired to utilize the opt-out feature when it comes to putting a property in the MLS, this may cause a lot of confusion among agents and consumers in getting a grip on available options.
Some sellers may be leery of being listed in the MLS, whereby they are not assured that the listing is classified as private or “off market.”
This is akin to listing a property and not placing it in “coming soon” status first, as initially discussed and agreed upon by the seller, so they have time to get all the kinks ironed out on their property before going active.
Private listing networks are already in existence at many brokerages where agents can share their listings across their office or entire brokerage.
Is it time to change CCP?
As an industry, perhaps we need to revisit what we want the concept of Clear Cooperation to truly be and consider calling it something else.
Because Clear Cooperation implies exactly that. Right now, it appears we are trying to shove a round peg in a square hole with different variations of the same tactics that aren’t really in the spirit of Clear Cooperation. If the solution were that simple, we would have come up with it by now.
Should these policies be left up to individual Realtor associations and MLSs rather than a blanket policy imposed by any one trade association? Post-settlement fallout from Sitzer | Burnett left an industry having to go through monumental changes without much say in the process.
As we know, those who hammered out the settlement were not on the front lines with agents and consumers and disconnected from the realities of practicing real estate. Some of those involved in finalizing the settlement have since left NAR.
The same may occur with an attempted revision of Clear Cooperation. Just like the settlement, you can’t meet the needs of everyone, and there are going to be outcomes that benefit some brokerages to the disadvantage of others. That is not fair.
Another way
As it stands now, sellers don’t have to go into the MLS if they don’t want to, so long as they sign a document that explains what this means and acknowledges the ramifications of this decision (generally referred to as the seller exclusion from MLS).
Brokerages can choose to market listings as they wish within their office or company only if a seller does not want to go into MLS.
Is it time for local MLSs to have an off-market option that is visible to members only, whereby they can easily determine those listings that do not wish to be made publicly available?
With an off-market category, properties going into this classification would not have any option to feed out to public portals. This way, there would be a clear distinction between public and private listings.
Perhaps a different and more flexible format could be developed for private listings, such as not requiring any photos if desired or not disclosing the address or price, but the listing could be put in the applicable MLS region, area, etc. Agent remarks could share as little or as much information as they wished.
This is different than the current MLS requirements, where you must have at least one photo, and there are mandatory fields — the address being one of them — that must be completed to activate the listing to either coming soon or active status.
A seller would be required to sign a disclosure document explaining and acknowledging what “private listing status” meant, and a copy of that, along with the listing agreement, should be submitted to the MLS to ensure that the agent representing the property truly has the authority to do so. This is similar to a seller exclusion from MLS.
Allowing a more flexible MLS platform for private listings would encourage agents to use it rather than turning to workarounds.
Should the seller wish to have their property become public, the agent would need to relist the property in that category.
Days on market could accumulate as a private listing, just as with a public listing, and if the property is not selling and continues to sit on the market, a refresh is often needed.
Plus, if the seller initially did not want many photos or information shared in the private listing, relisting the property as a new listing with photos, video and detailed information would be sure to attract new attention and engage buyers.
While some consumers may not want to be officially on the market, it would seem to me that the MLS offering another way would level the playing field for both large and small brokerages that want to be able to give their sellers choices without cutting off their noses to spite their faces.
Off-market confusion
Exposing listings within a brokerage or any number of social media groups (where agents have no idea if the agent posting an “off market” listing truly has the authority to do so since the seller could be talking to any number of agents to promote the property), doesn’t guarantee a sale, and exposure is certainly limited.
“Off market” social media group posts typically include partial information on a property for obvious reasons, and it can be hard to keep track of information spread across a variety of mediums.
Agents have multiple pieces of information, emails, texts, etc., vying for their attention at any given time that they must filter through; one central repository to retrieve these kinds of listings is needed.
I have seen many instances of “off market” listings being promoted electronically with flyers sent out through various platforms that will blast the property to all agents within an MLS.
While that property may not be listed on the MLS or public websites, it certainly has been promoted to hundreds, if not thousands, of agents, depending on the size of that MLS.
Is that in line with a seller’s desire to remain off-market?
Clearly, an agent taking a risk to blast something like this out knows that keeping the property a secret isn’t going to help the seller nor themselves get paid, and it may serve as leverage to get the seller to officially list on MLS after the agent tells them all the ways they have attempted to promote their property off market (which are a violation of MLS rules if they have shared it outside their brokerage, promoted on social media, etc.).
It’s time for transparency and clarity about how we market off-market. Coming soon was never a thing until it was, and it streamlined the process of giving agents a heads-up as to what’s going to be coming up for sale.
That has been incredibly helpful, especially in tight inventory markets, as we have been experiencing many owners hesitant to move.
This eliminated a lot of friction and game-playing with agents who listed property and restricted showings until the first open house several days later, making it difficult to show the first initial days on the market on purpose.
Or changing the status to hold or withdraw until their weekend open house. All that did was foster confusion and distrust amongst agents, buyers, sellers and their neighbors.
Of course, there are those agents who like to push the envelope and may troll a property in coming soon if it appears vacant or see if they can slip in there with or without their buyer (think contractor over at the house or an unlocked slider or side door), which is trespassing and violates MLS rules, and they submit an offer.
Being in coming soon status doesn’t preclude a seller from working with an offer, but the property hasn’t gotten full exposure, and some buyers only want the property if they can lock it up while in coming soon status.
But is that in the best interest of the seller? Or will they never fully know if there is or was a better offer that could have materialized and offered better terms?
The buyer wants to pressure the seller to accept their offer early on in exchange for taking it off the market. The offer is usually a too-good-to-be-true scenario whereby the buyer locks up the property and goes for the beat down after inspections.
The same concept with coming soon should apply to the ability to place a listing in the MLS, classified as a private/off-market or whatever verbiage an MLS would like to call it. It does not have to be mandatory to put a listing into an off-market section of the MLS, but it can be an option.
I would be curious if this came into existence, how many agents would take advantage of this feature. For one, it would provide a sense of transparency and authority that the agents marketing an off-market listing actually had the authority to do so.
Confidentiality is OK
Not everything we do has to get published across hundreds of websites. Syndication has been the death of our industry in so many ways, including MLS data getting diluted across too many portals and not being updated in a consistent manner when changes are made to a listing.
Raise your hand if you’ve ever had a seller ask you why the change you made on a listing, whether it was price, wording, photos or what have you, isn’t showing up on certain websites as of yet — and it’s been a week.
We have no control over being able to update those sites, which makes it equally frustrating. Not that we have the time to go through 500-plus portals and do manual updates to each one, but as a condition of syndication, these websites should be required to update in real time.
Not all do. Many of these sites would rather generate leads and sell them to hungry agents rather than focusing on data integrity and the true status of listings.
Let’s not forget that the MLS itself is a private database belonging to real estate agents and/or Realtors (depending on how that is structured in your market and who pays fees to use it) and is not public.
Does the public have the ability to utilize online legal research tools like LexisNexis and WESTLAW that attorneys pay hefty subscriptions for? They can search a multitude of public records and cases quickly and easily, which they need to serve their clients effectively.
The public, however, must rely on public records they can access (and not all are accessible regarding court records, tax and property appraiser records, Secretary of State corporate records, business filings, etc.).
The same should apply here.
Too much information sharing to consumers has created confusion and diminished our role. There are plenty of armchair real estate “experts” who think that the consumer doesn’t need us to find a house.
Well, how many of us have introduced the consumer to a home, area, etc., that they had never thought of before? They didn’t know until we educated them and made them aware of it. Never mind they could see the listings on portals — they didn’t know what they didn’t know, so they didn’t know where to look.
Syndication has allowed for real estate information to be taken out of context and misinterpreted. We are always running interference with consumers confused by this website that says the value of a property is X, this other website shows Y, etc.
Streamlining the off-market process may eliminate social media groups with unverifiable information and other workarounds. If agents could truly keep listings off-market and not post them anywhere, then social media groups and brokerage off-market programs may become less relevant as you risk missing people who are not part of those groups.
It’s not that they can’t exist, but at least there would be one central platform for paying MLS members to utilize if desired. There seems to be a conflict of interest to state a seller doesn’t want to go on the MLS for privacy reasons and would rather sell off-market.
By what means? The chosen few who know about it and may not have a buyer? That does not mean that agents can’t network their properties to agents who may have buyers however they wish, but at least there would be a consistent platform available to funnel this information.
Agents can still source off-market listings through networking, farming, etc., and may know of sellers who are interested in selling but don’t wish to sign any formal listing agreement on- or off-market.
Let’s call those “make me move at the right price/terms” sellers, and they are opportunities in the ether that you might learn about at an office meeting or other networking you, as an agent, are doing.
Zillow came up with a “Make Me Move” status years ago; maybe that’s another bucket MLSs ought to consider offering.
It’s time for off-market reimagined
Our industry continues to be at a crossroads on Clear Cooperation as well as numerous other issues relating to the word “required” or “mandatory” regarding having to be a member of NAR and state and local associations to access the MLS, forms, etc. Some want to twist Clear Cooperation and off-market for their own benefit while not considering what’s in the best interest of a seller.
We went through the exercise of transparency and clarity to the tune of a multibillion-dollar settlement in the Sitzer-Burnett case in 2024. Playing “I’ve got a secret” with listings, whereby I can only tell you a little bit — and you have no idea whether that agent has true authority to sell that property — is a huge issue with off-market properties.
Let’s put a system in place that allows all MLS members to be able to share these properties if desired, with full confidence, knowing that the agent posting the listing has the authority to represent the property without having to share details that would normally be required of an “on-market” listing in MLS.
With the high cost of housing, insurance and interest rates, we are continually challenged to find new inventory and opportunities for our clients. All of us have sellers who would sell if they could figure out where to go.
Fear holds many of them back because there are limited options that fit their budget and lifestyle, so they stay put and do nothing, perpetually dreaming of moving with no tangible plan.
While we can farm, scour tax records, send out strategic mailers, door knock, cold call and circle prospect to try to locate off-market inventory, we have the tools and technology to share this information in a safe way that may find more matches between off-market sellers and buyers.
What good is an off-market listing if not enough people know about it to lead to a sale? Time is money in real estate, and we have done enough spinning our wheels on behalf of buyers and sellers with little to no ROI over the years.
If we could find some less stressful ways to open up the pipeline for sellers who want to sell but may not want the pressure of going publicly on the market, perhaps we could better match buyers and sellers on their time and terms, which could encourage more movement in the market at all price points. There should be nothing nefarious about that.
