The defense of agent-originated private listings now arrives in bulk.
- An hour-plus webinar where the evidence is “muddy.”
- An hour-long podcast on trust.
- Earnings-call monologues about seller choice and marketing homes like Ferraris.
You cannot answer all of it in 800 words — and you are not meant to be able to. The length is the strategy. The case for keeping listings off the open market survives only when it is stretched long enough to bury the one question it cannot answer: Would the average, reasonable, fully informed seller agree to a marketing strategy that tends to lower their net price, lengthen their days on market and pay their own advisor more?
That is the whole debate. Every hour of video is an effort to keep you from asking it that plainly — because asked plainly, it answers itself. The law already has a name for that standard: the reasonable person.
Real estate has a shorter one: informed consent.
Rob Hahn, who has disclosed he was retained by Compass, says the lawsuits “will be decided on this single issue: Was there informed consent?” He’s right. So let’s stop the debate by answering the central one-sentence question.
Watch how quickly the debate collapses once you do.
‘The evidence is muddy’
It is only muddy if you do what the webinar does — set the question of consumer harm to the side, then compare studies in the space you just cleared. Put the seller’s interest back in the room and the fog lifts.
Every agent already knows the rule those studies keep circling: broad exposure drives price. We stake our livelihoods on it every time we tell a for-sale-by-owner that going it alone will cost them.
‘It’s the seller’s choice’
No seller ever called an agent to ask for less marketing. In The Real Brokerage’s March survey of more than 400 agents, 69 percent said not one client had ever requested it.
The demand isn’t coming from sellers — it is supplied by brokerages, and every reason behind it is theirs, not the seller’s.
- Listing control: We hold the motivated buyers the other firm doesn’t.
- Buyer control: Those buyers have to come to us to see the inventory.
- More money: Compass’s own internal documents show its off-market deals double-end at a rate 72 percent higher than its public listings.
- Recruiting: You can’t beat our inventory, so join us.
- Retention: Leave, and you lose the advantage your own listings helped build.
That is a corporate growth strategy, and it scales with market share. None of it has anything to do with the seller. A choice no one asks for, urged by the party who profits from “yes,” is not a choice — it is a default with a signature attached.
‘It’s about trust and cooperation’
There, the long-form agrees with me. Brokerage CEOs are now warning that the industry’s trust problem is self-inflicted and that cooperation has always been its foundation. They are right — and cooperation is exactly what a private exclusive limits. You cannot defend the practice in the name of the value it erodes.
Which is why no amount of runtime closes the gap. Informed consent is not a signature on a form, nor a seller’s bare preference the market should be free to honor. It is a fiduciary standard. The person obtaining consent cannot be the one who profits from “yes” — plenty of mothers can tell you a C-section sometimes gets scheduled more for the doctor’s calendar and the hospital’s margin than for the health of mother or baby.
The cost has to be named and quantified. And consent to a default the seller never sought is not consent at all. The National Association of Realtors’ own policy already requires sellers to sign a disclosure acknowledging the exposure they are giving up. The form exists. The only question left is whether we treat it as a box to check or a duty to discharge.
And that duty is already written down. The Code obligates us to protect our client’s interest and to cooperate with other brokers unless cooperation is not in the client’s best interest. A private exclusive is defensible only when not cooperating genuinely serves the seller — proven by real, informed, seller-originated consent.
Everything else is a business strategy wearing a consent form.
So listen to hours of debate, if you like. Then ask the one question. The side with the most airtime is the side that needs it.
Bruce Ailion is a Realtor and attorney with REMAX Town and Country in Atlanta, where he has represented buyers and sellers for more than four decades. REMAX competes with Compass; the views here are his own.
