LIEB BLOG

Legal Analysts

Showing posts with label mls. Show all posts
Showing posts with label mls. Show all posts

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. 




Friday, January 08, 2016

Direct Negotiations in Co-Brokered Flat Fee MLS Real Estate Impermissible by Regulation

Flat fee MLS is a trend where a homeowner can pay a small fee (typically around $300), to list their For Sale By Owner home (referred to herein as “FSBO”), on the Multiple Listing Service (referred to herein as “MLS”). As a result, the homeowner can enjoy the best of both worlds in avoiding an approximate 4 to 6 percent commission, while nonetheless exposing their property to all of the clients and customers of licensed real estate brokers/brokerage firms throughout the region. However, the FSBO homeowner cannot directly place their home on the MLS on Long Island, but instead must pay a flat fee MLS vendor, who is also a real estate broker/brokerage firm (referred to herein as “MLS vendor”) for the privilege of using the MLS because only licensees of the service can list on the MLS.

Read the full article, written by Andrew Lieb, Esq. published in The Suffolk Lawyer