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The National Association of Realtors’ anti-pocket listing policy is here to stay, the trade group announced Tuesday morning. But it’s got new options.
Following an assessment of the Clear Cooperation Policy, NAR said it thinks it’s found a way to balance demands from brokerages like Compass to allow off-market listings while still placating those who say pocket listings are anti-competitive and risk fair housing violations.
The old multiple listings service access rules “will exist in conjunction with clear cooperation and other policies to provide sellers and agents with more options and choices when marketing a property while also aiming to support fair housing by providing buyers and agents with equal access to important MLS property information,” NAR said in its announcement of the new policy, which it’s calling “Multiple Options for Sellers.”
Compass and other high-end brokerages have been waging a campaign for some time to overturn Clear Cooperation, which makes Realtors file their listings in the MLS within one business day of starting to publicly market them.
It recently fired a new salvo in the battle by announcing a new marketing plan that would let its agents market listings privately before publicly listing them, to try and avoid any stigma created by long times on the market.
The federal Department of Justice has also been part of the debate, suggesting in court filings that its prosecutors thought the Clear Cooperation Policy violated antitrust rules. But the department’s prosecutors recently clarified their position in a legal filing, according to New York City trade publication The Real Deal, saying they haven’t actually taken a position on whether it breaks any laws.
“NAR continually reviews its MLS policies to ensure they best serve its members and their consumers while also mitigating and avoiding potential legal risks,” NAR President Kevin Sears said in a statement. “As such, NAR undertook a comprehensive review of CCP as part of our efforts to ensure home sellers and home buyers have the information and flexibility they need to make decisions that work for them. These policy changes allow for greater choice for sellers in marketing their properties while considering buyers’ need to access information through MLSs. NAR is grateful for our members’ engagement throughout this process, and we are pleased to have reached an outcome that balances the needs and perspectives of our diverse membership.”
The policy introduces a new category of exempt listings called “delayed marketing exempt listings.” The exemption will allow a seller the option to instruct their listing agent to delay marketing a listing through Internet Data Exchange and syndication for a period of time. Each MLS will have the discretion to determine a delayed marketing period that is most suitable for their local marketplace, NAR said.
During the delayed marketing period, the home seller and the listing agent can market the listing “in a manner consistent with the seller’s needs and interests,” NAR said, although the listing will still be visible to other MLS participants.
Listing agents representing sellers who choose to delay the public marketing of their listing must secure from their seller a signed disclosure documenting the seller’s informed consent to waive the benefits of immediate public marketing through the data exchange and syndication. Seller disclosure is required for both delayed marketing exempt listings and office exclusive exempt listings.
Most of Massachusetts is covered by MLS PIN, a privately-owned listings service not subject to NAR rules. However, the Berkshires, Cape Cod, Martha’s Vineyard and Nantucket are covered by Realtor association-owned MLSs, and in the past MLS PIN rules have tended to mirror NAR’s rules.
The new policy does not change an MLS’s local submission deadlines or the Clear Cooperation Policy’s requirement to file a listing with the MLS within one business day from public marketing, NAR said.
Banker & Tradesman staff writer James Sanna contributed to this report.
