The CEO's Take: How We Will Implement the New Clear Cooperation Policy

How We Will implement the new Clear Cooperation Policy

Pocket listings (and their close cousin, the ‘coming soon’) are nothing new. Driven by today’s low inventory levels and enabled by technologies such as social media, there are new tactics being deployed by brokers and agents to potentially gain more buyers and sell property faster by marketing a property before listing it on the MLS. The tactic of pre-marketing a listing is being used by brokers and agents as a lead generation tool -- and potentially to represent both sides of the transaction. This has led to many wondering what the fair housing implications are, if this practice is fair from a competition standpoint, and importantly, if it is best for sellers. MLSs around the country wrestled with the question of whether this practice undermines the basic tenet of a multiple listing service - clear and fair cooperation.

This tactic has been a growing concern that we have heard about more and more frequently from our members. The concern is not just in our market - this practice is an issue nationwide as many markets are struggling with low inventory levels, and an increasing tech-enabled use of pocket listings.. That is why the National Association of REALTORS® added a new mandatory policy called ‘clear cooperation’ that REALTOR® association-owned MLSs must adopt prior to May 1, 2020. The rule states:

Within one (1) business day of marketing a property to the public, the listing broker must submit the listing to the MLS for cooperation with other MLS participants.
Public marketing includes, but is not limited to, flyers displayed in windows, yard signs, digital marketing on public facing websites, brokerage website displays (including IDX and VOW), digital communications marketing (email blasts), multi-brokerage listing sharing networks, and applications available to the general public.

What the Rule Means
The rule is simple, but has wide-ranging impacts and consequences. To examine these impacts on a local level and to assist in creating an implementation guide, CCIMLS will be creating a Clear Cooperation Task Force. This group will take a deeper look at the issue, and will propose an implementation policy along with additional guidance on what “public marketing” means, as there can be real nuances and different interpretations of that language (for ex: is it public marketing if you do not include an address or other identifying marks about a property?).

The main takeaway: Within 1 business day of marketing a property, a property must be available in the MLS.
This means that within 1 business day of posting about a new listing on social media, it must be in the MLS with a signed listing agreement. This means that within 1 business day of putting a sign in the yard., it must in the MLS with a signed listing agreement. This means that within 1 business day of posting the ‘making of’ a photo shoot on social media, it must be in the MLS.

The policy does still allow for office exclusives, but changes the definition of an office exclusive to say that it CANNOT be marketed publicly.

You can see now the far ranging consequences of this rule - and these scenarios could be just the tip of the iceberg.

Why this rule?
Beyond the complaints we’ve received from members about their buyers or from buyer agents who should and need to know something is on the market - ultimately, this is about fair housing.

By marketing a property only to your sphere or a select group of brokers, you can run into fair housing issues, and fair housing is not something to roll your eyes at - Long Island’s newspaper Newsday just printed an undercover test program of agents in Long Island on fair housing and the results were devastating. I encourage you to read it.

Ask yourself: Is only showing the listing to your sphere of influence and restricting who can and can’t view a listing in the best interest of your seller - or are you selfishly putting your own interests first?

The Clear Cooperation Task Force
CCIAOR’s leadership team is compiling a list of members interested in helping implement this rule. The options range from creating a new property type to creating a pre-marketing status that may detail the day properties would be available for showings.

Note: Remember, just because you put a property in the MLS does not mean it has to be available to show, nor does it mean it has to be distributed outside of the MLS even through contact management.

We expect the task force to meet 3 to 4 times through December and January with hope to present their recommendations to the Board of Directors for their February meeting.

If you are interested in serving on the task force, contact Marcia Stirling, Greg Kiely, Joe Arnao, or myself to express your interest.