By now, all MLSs should have implemented the mandated MLS Statement 8.0, NAR Clear Cooperation policy, which promotes greater access to available for-sale properties to brokers and consumers. This doesn’t mean MLSs and AEs are not still facing challenges, including educating their members and getting those agents and brokers to educate their customers.
The topic of Clear Cooperation has been a hot one in 2020—so much so that the Facebook group for MLS directors and staff created its own hashtag, #theocho (“ocho” is Spanish for 8).
Here are the top questions and answers gleaned from the MLS Facebook page and vetted by the National Association of REALTORS®’ MLS guru Rene Galicia.
Q. Multiunit new construction developments are not subject to the Clear Cooperation Policy, but when a single-family home is under construction and being advertised to the public, at what point does it fall under Clear Cooperation?
Each MLS may handle this differently. Chris Carrillo, CEO of MetroMLS in Milwaukee, say he continues to work with local builders on implementing Clear Cooperation. “New builds are not required for submission into MLS until there’s a frame and roof,” he says.
Angie Baker, technology training and outreach specialist at the MIBOR REALTOR® Association, Ind., says, “We require input if there is a listing contract, period. We have a series of new construction fields that can be applied.”
Listing brokers are encouraged to check with local and state licensing authorities as there may be additional requirements before a new-construction property can be listed and sold.
Q. If a member has a listing on waiver and the seller posts on a social media page that they’re selling their house, does the listing then have to be entered into the MLS within one business day?
Yes. Prior to entering into a listing agreement, listing brokers must explain to their clients their obligations under the MLS rules, including the requirement to share the listing with other MLS participants if it is publicly marketed by anyone. Brokers should also fully explain an Office Exclusive strategy to their sellers when privacy concerns are involved. Once public marketing occurs, those privacy concerns no longer exist and the listing will be required to be shared cooperatively with other participants in the MLS.
Q. My MLS is in a nondisclosure state where the sale price does not have to be reported. What implications does that have regarding 8.0?
State nondisclosure simply means there is no state law requiring sales prices be entered into the public record. It doesn’t apply to marketing practices or properties being entered into the MLS.
In most MLSs, participants are required to submit status changes, including the details of a sale and the sales price. However, this does not prevent the MLS from exploring and establishing local options and specific criteria to withhold sales data when requested by the seller (or buyer). MLSs are encouraged to work with local brokers to determine their needs.
Q. How does Clear Cooperation apply to REOs, HUD, etc.? HUD often requires pre-listing photos that include the agent’s sign on the property and many times listing agents don’t get the green light until after one business day. Banks often ask agents to post their contact information or sign on the property prior to giving them the green light to list the property. Both of these situations would cause the agent to put the property on the MLS after one business day.
Third-party requirements do not modify the Clear Cooperation rules. If you come across any bank, REO, or HUD policies that may be contrary to NAR or MLS policy, report them to your MLS, which may be able to open a dialogue with banks. Similarly, NAR’s advocacy team can voice concerns directly to federal entities, such as HUD.
Q. If a listing is put in a “coming soon” status in the MLS, does Clear Cooperation require that listing to be included in an MLS’s IDX displays or syndication to third-party sites?
No. While listings that are marketed on the Internet must be submitted to the MLS and distributed to other MLS participants for cooperation, submitting a listing for cooperation within the MLS, either in coming soon or any other status, does not necessarily require that listing to be included in an MLS’s IDX display or feed to third-party sites, if the seller has opted out of all internet display. Per MLS rules, participants can work with their listing clients to determine an appropriate marketing plan, taking into account the client’s needs and full disclosure of the benefits to market exposure.
Q. It is common for agents from the same office to view a home before it goes into the MLS if there is any question in the listing agent’s mind about the price. If the agent conducts this showing prior to having the signed listing agreement, there is no violation of Clear Cooperation, correct?
Correct. If there’s no signed listing agreement, there’s no violation. Also, agents are still able to do office exclusives and caravan listings interoffice, but the minute there is a listing agreement and a sign goes in the yard or the agent publicly markets the property in any other way, such as including brokers or agents from a different company in the caravan, it must be shared in the MLS.
Q. What happens if a broker doesn’t have a signed listing agreement but has been told by an owner to bring buyers. That broker takes to social media and says: “I know of a property in XXX Township where the owners are looking to sell. It’s a ranch, 3 bedrooms, 2 baths, on 5 acres, at $179,900. If anyone wants to see it, let me know.”
The Clear Cooperation policy applies to those properties subject to a listing agreement as specified under NAR’s Listing Procedures Section 1. It is important for brokers and agents to have an executed listing agreement to ensure they can legally represent the seller and to comply with state and local laws. Advertising a property without a signed listing agreement may present potential violations of The Code of Ethics and state law.