AgentBrokerage

Open real estate agent data generates vast new liability for ‘pocket listing’ brokers and agents

Class-action lawsuits and fair housing violations are just the start

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A new twist in the expanding market of pocket listings and private listing associations may start to cause real estate brokers to reconsider their positions on the practices. Scrutiny over “whisper listings” has led to questions of potential financial liability for real estate agents, and their brokers, who regularly involve themselves in these transactions.

A panel last week at Inman News’ Real Estate Connect conference in New York discussing pocket listings showed little difference in opinion on the quality of service being delivered by practitioners who pocket-list homes. The forum participants included many executives from the largest MLSs in the country. The featured broker/agent speakers included Shaun Osher of CORE in New York City, and Danai Mattison of the Mattison Group in Washington, D.C.


Magnifying glass image via Shutterstock.

Their views on pocket listings were refreshing and unequivocal. Osher was particularly frank. The main takeaway: There is no place for “premarketing” or “coming soon” in an MLS-accessible market. If a home is being marketed in any way, it’s for sale. Limiting its exposure puts an agent’s personal financial gain at odds with a client’s financial return.

Possibly more striking was the conversation with Neil Garfinkel, a partner with the law firm AGMB in New York. In his personal opinion, those who engage in pocket listings are opening themselves up to potential litigation. A former client who felt they were led into a practice that didn’t maximize their financial return, and didn’t fulfill the agent’s standards of duty, will at some point be the bellwether for pocket listing litigation in the industry. Real estate licensee duties can be fiduciary or statutory depending on the state, but almost always call for a high standard of care for a client’s well-being.

While the liability discussion on that day centered on a single former client suing their personal agent, there are a number of much larger issues that seem to collide at this one point. As real estate brokers and agents battle over opening large sets of agent production data to the public, the executives of most of the largest real estate companies seem to be signing on to the idea (Realogy’s and Re/Max’s CEOs concurred at Connect). It’s becoming clear that the dissemination of agent sales data is becoming a question of “how” as opposed to “whether.”

This new look into the practices of real estate agents and their brokerages will allow consumers to see everything their professional service providers do in a new light. Individual sales and practices will be boiled down into averages, probability and patterns.

For the agent or brokerage heavily involved in pocket listings, it may be the biggest liability they’ve ever encountered. The sales production they’ve been touting for years will now be scrutinized against the backdrop of nonexistent MLS-recorded sales. Off-MLS sales, known to be attributed to these agents, will be dredged up from public records and contrasted against similar homes that were exposed to the broader market. Class-action lawsuits and fair housing violations are just the start of the new potential threats that will need to be analyzed by a real estate broker entering this new world of “transparent” production data.

We’ve all heard the flimsy elevator speech as to why certain clients are better served with pocket listings. In reality, anonymity, exclusivity and other past concerns have all been overcome by the newest MLS rules and technologies. Even if those arguments held water for a unique few clients, pocket listings are clearly an unsavory practice when serving the vast majority of home sellers. So what happens when it becomes statistically clear that an agent is advising the majority of his or her clients to limit the exposure of their listing? When a publicly visible pattern of repeatedly pocket listing clients’ homes is now available online, the spotlight on the agent, and the brokerage, will begin to get a bit hotter.

Consider a “boutique” brokerage whose agents, across the board, almost exclusively practice pocket listings. The owner or managing broker of this office will inherently be assumed to approve of, or even encourage, limiting the listings’ exposure. This demonstrably repetitive practice will be available for every disgruntled, poorly served or financially troubled ex-client of the firm. There is a very real opportunity for a group of former clients to bring litigation against a broker, without having to prove the details of an individual transaction. The broker — and its agents — will have digitally written their confession in the form of a long-term record of off-market production statistics.

Fair housing violations have always been considered a potential red flag in pocket listing transactions. When an individual agent pocket-lists, he may or may not be limiting a home from any number of protected classes or groups, but it’s difficult to prove in a one-off transaction.

As open production data surfaces, however, the brokerage that repeatedly limits which groups of the buying public have access to their listings will be under an enormous amount of scrutiny. There will be, without a doubt, organizations dedicated to crunching this data and matching past transactions to buyers and sellers, attempting to determine if a certain class of citizens is being excluded in practice. The potential of being labeled as a fair housing violator should be enough for most brokers to immediately re-evaluate their agents’ policies.

As for financial liability from former clients, the potential runs from painful to career-ending. A single client suing for the refund of commissions paid would be a significant strain on the business. An entire class of clients bringing suit could bankrupt a brokerage in short order.

There’s nothing to say that the financial pitfalls couldn’t be heavier. The amount of equity a homeowner lost in a pocket listing could far-and-above outweigh the agent’s commission. If the client was truly wronged, this loss in equity could reasonably be considered as the amount an agent or broker must recoup for the seller. As the open data pool gets larger, analyses based on neighborhood comps will contrast open market sales and pocket listings, unearthing disparate sale prices and projections of losses (or profits) based on one practice versus the other.

It’s likely that a brokerage with a regular pattern of pocket listings will have a record that shows lower final sale prices than those garnered by comparable homes listed on the MLS. It won’t require a “he said/she said” client vs. agent level of proof. There will be a long-term statistical testimony of a brokerage’s approved practices, the industry’s knowledge of that practice’s deficiencies, and a data-driven picture of the clients’ losses.

Of course, this vast picture of liability could be overblown if the data reveals pocket listings to be a boon to home sellers. While the overwhelming industry consensus casts a great amount of doubt on that scenario, it is possible. Still, there’s far more downside potential to taking that position as a broker. Having your company’s pocket listing practices justified by data merely allows you to continue doing business as usual. If the data turns the other direction, the vultures looking for deep pockets will start circling quickly.

In the end, the publication of agent production data, done in a responsible and ethical way, could force some unintended positive changes on industry practices. If more consumers are advised by their agents and brokers to get full exposure in their local markets, home sellers’ personal financial outcomes will be enhanced. At the same time, an increase in public listings will expand and improve the quality of closed sales data used by brokers, appraisers, banks and others. Raising the level of real estate’s professional practices, improving clients’ returns and increasing overall sales data quality are just a few more reasons the industry is leaning toward a more accessible future.

Sam DeBord is a managing broker with Coldwell Banker Danforth in Seattle, state director for Washington Realtors and a real estate/technology writer for numerous online outlets. You can find his team at SeattleHome.com.