LIEB BLOG

Legal Analysts

Showing posts with label NAR. Show all posts
Showing posts with label NAR. Show all posts

Monday, March 31, 2025

NAR: Clear Cooperation Stays But With a New Loophole

The National Association of Realtors ("NAR") is shaking up how real estate brokers market properties. After months of debate, NAR announced it will keep its Clear Cooperation Policy ("CCP"), the rule that requires agents to put listings on the MLS within one business day of publicly marketing them. But there's now a twist: NAR is adding a new option called “delayed marketing exempt listings.”


Under the new policy, sellers can opt to delay marketing their property on third-party listing sites that pull data from MLS for a period set by the local MLS. However, the property will still be visible on MLS to MLS participants and subscribers, meaning brokers and agents can still access it. How is this new? Well, the public won’t see it right away on sites like Zillow. This gives sellers and their agents more control over when the listing hits the wider market.


For brokers, this opens up some interesting strategies. A delayed listing could give sellers more time to prepare their property or test the waters with select buyers before going fully public. On the flip side, this could limit public exposure, potentially reducing competition and impacting the final sale price.


Brokers, be aware of the compliance requirements. If a seller opts for delayed marketing, they’ll need to sign a disclosure stating they understand the tradeoff: they’re waiving the benefits of immediate public marketing. It’s also worth keeping an eye on how local MLSs handle the days-on-market ("DOM") rule. Some might count the delayed period toward DOM, which could make a listing look older faster.


At the end of the day, this new policy gives brokers and sellers more flexibility, but with some new risks. Will delayed listings benefit sellers by giving them more control? Or will they reduce transparency and limit buyers’ access to inventory? Let us know your thoughts in the comments. 




Thursday, March 27, 2025

NAR's Delayed Marketing Exempt Listings Rule & Office Exclusive Exempt Listing - Anticompetitive Practices?

Did MLS just engage in anticompetitive practices as to online listing platform companies, like Zillow, Realtor.com, Homes.com, Redfin, and Trulia, by permitting sellers to elect off of public marketing through an Internet Data Exchange (IDX) while simultaneously requiring sellers (without any election option) to have their listings shared between MLS participants and subscribers? 

Previously, and since 2020, the MLS Clear Cooperation Policy had required brokers to submit listings to MLS, within one (1) business day of publicly marketing the listing, and all listings were immediately available on the IDX. This policy is no more.

Now, and at least as of September 30, 2025, NAR has established the Delayed Marketing Exempt Listings Rule where all listings will be required to be available through the MLS to all participants and subscribers, but not by IDX if the seller signs a disclosure agreement (also, the seller disclosure prevents brokers from engaging in syndication).  

This IDX / MLS dichotomy results in giving the MLS (and its participants and subscribers) a clear advantage over other online platforms (and non-NAR / MLS real estate licensees) where the result likely will steer consumers towards working with real estate licensees affiliated with NAR, to the detriment of non-NAR / MLS real estate licensees, because that is who will have the most up-to-date information.

It is acknowledged that MLS does also permit consumers to elect to have an Office Exclusive Exempt Listing, which permits a seller to have their property only marketed with their brokerage for a set period of time. However, unlike the Delayed Exempt Listings Rules, any act of public marketing on the Office Exclusive Exempt Listing, such as putting up a sale sign on the property, ends the Office Exclusive Exempt Listing resulting in immediate sharing throughout the MLS with participants and subscribers, but not necessarily on the IDX. 

Is it time for Sitzer 2.0? 






 

Thursday, November 19, 2020

Department of Justice Sues, then Settles, with NAR Concerning Anticompetitive MLS Practices

Today, the Department of Justice Antitrust Division announced the simultaneous commencement and settlement of antitrust and anticompetitive practice complaints against the National Association of Realtors. 

In its press release, found HERE, the DOJ identified four areas of anticompetitive practice which they allege "result[ed] in decreased competition among real estate brokers":

  1. Prohibiting local MLSs from disclosing to prospective buyers the amount of the commission earned by buyer brokers;
  2. Permitting buyer brokers to misrepresent to buyers that their buyer brokerage services are free;
  3. Enabling buyer brokers to filter MLS listings by the amount of buyer broker commission offered; and
  4. Preventing non-NAR brokers from accessing key lockboxes for homes listed on MLS.

The settlement will directly address these four issues in order to "enhance competition in the real estate market, resulting in more choice and better service for consumers." The proposed settlement can be found HERE and will be open for public comment once posted to the federal register. 

NAR has routinely found itself under antitrust scrutiny due to its overwhelmingly popular MLS platforms, which often are the only multiple listing platforms available in local markets. Three recent federal lawsuits filed against NAR have focused on NAR's policies regarding compensation for buyer brokers, alleging that buyer brokers are unable to compete on price due to the requirement that all listings on MLS offer some form of cooperating brokerage commission. It is alleged that these anticompetitive practices have driven up the overall cost of brokerage services for consumers by eliminating competition on the buyer broker side of the market. 

The announcement by the Department of Justice was silent with regard to whether any additional investigations into NAR were ongoing.