The National Association of Realtors' Clear Cooperation Policy is effective May 1st 2020.
The policy is stated below. We appreciate that there will be many questions and many different scenarios. Some will be covered below, others will become apparent as we work towards implementing the new rule.
Section 1.01 – Clear Cooperation - Effective May 1st 2020
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. (Adopted 11/19)
Note: Exclusive listing information for required property types must be filed and distributed to other MLS Participants for cooperation under the Clear Cooperation Policy. This applies to listings filed under Section 1 and listings exempt from distribution under Section 1.3 of the NAR model MLS rules if it is being publicly marketed, and any other situation where the listing broker is publicly marketing an exclusive listing that is required to be filed with the service and is not currently available to other MLS Participants.
Section 1.3 Exempt Listings
If the seller refuses to permit the listing to be disseminated by the service, the participant may then take the listing (office exclusive) and such listing shall be filed with the service but not disseminated to the participants. Filing of the listing should be accompanied by certification signed by the seller that he does not desire the listing to be disseminated by the service.
Note 1: Section 1.3 is not required if the service does not require all (indicate type[s] of listing[s] accepted by the service) listings to be submitted by a participant to the service.
Note 2: MLS Participants must distribute exempt listings within (1) one business day once the listing is publicly marketed.See Section 1.01, Clear Cooperation.
Do ALL REALTOR® Association MLSs have to adopt the MLS Clear Cooperation Policy?
Yes. By establishing a national policy, it is mandatory that all REALTOR® Association MLSs adopt the policy and have the same consistent standard.
Can a seller or the listing broker “opt out” of the policy’s obligations?
No. The new policy does not include an “opt out.” Any listing that is “publicly marketed” must be filed with the service and provided to other MLS Participants for cooperation within (1) one business day.
What is the meaning of “business day?”
Business days exclude Saturdays, Sundays and holidays. The NAR MLS Advisory Board specifically revised the policy’s timeframe due to concerns with enforcement to provide greater flexibility for days when submitting the listing to the service could be a challenge. For consistency among all REALTOR® Association MLSs, the approved timeframe is 1 business day.; “holidays” include all recognized federal and state holidays.
How does the new deadline of “1 business day from marketing a property to the public” correspond with the existing local MLS’s filing deadline, which varies from MLS to MLS?
The local MLS’s filing deadline, typically found in Section 1 of the MLS rules, is the amount of time that a broker has to file the listing with the service after receiving all of the appropriate signatures on the listing contract. Once a broker begins to publicly market the property, they have 1 business day to file the property with the service. Specific questions about filing deadlines can be directed to your local MLS.
In some markets, listing brokers use exempted listings to withhold sales information from the MLS. This can be of particular concern in non-disclosure states. Under the new policy can a broker, after receiving instruction from their client, withhold sales information from the service?
This is a matter of local discretion. In most MLSs, Participants are required to submit status changes to the service, 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.
Is the new policy consistent with Article 3 of the NAR Code of Ethics?
Yes. By joining the MLS, Participants agree to be bound by the MLS Rules and Regulations. Per the policy’s rationale, the public marketing of a listing indicates that the MLS participant has concluded that cooperation with other MLS participants is in their client’s best interests.
If the MLS has established a coming soon status, or other pre-marketing solution that shares listing data with all MLSs participants and subscribers, does that comply with the cooperation requirements of the policy?
Does the new policy require changes to the local MLS rules? Adopted locally 5/1/2020
Yes. MLSs can adopt the specific policy language under Listing Procedures. Below are the changes to the NAR model MLS Rules. These changes will be reflected in the Model MLS Governing Documents found in the 2020 Handbook on Multiple Listing Policy (updated version expected January 2020)
Why was this policy approved?
Brokers and MLSs from across the country asked NAR to consider policy that will reinforce the consumer benefits of cooperation. The MLS creates an efficient marketplace and reinforces the pro-competitive, pro-consumer benefits that REALTORS® have long sought to support. After months of discussion and consideration within NAR’s MLS Technology and Emerging Issues Advisory Board, this proposal was brought forth for the industry to discuss and consider, then approved by NAR's Board of Directors.
Who made the decision that this policy was needed?
NAR’s MLS Technology and Emerging Issues Advisory Board is made up of brokers and MLS executives from across the country. Two dozen volunteers review industry concerns from a wide range of business and regional viewpoints. Potential policy changes are discussed within the group to create a positive impact on the industry and to address broker needs within the marketplace. The policy was strongly supported by the NAR MLS Committee and the NAR Board of Directors.
Does Policy Statement 8.0 require listings to be included in an MLS’s IDX displays?
No. While listings that are displayed 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 does not necessarily require that listing to be included in an MLS’s IDX display, 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.
Does Policy Statement 8.0 prohibit office exclusives?
No. "Office exclusive" listings are an important option for sellers concerned about privacy and wide exposure of their property being for sale. In an office exclusive listing, direct promotion of the listing between the brokers and licensees affiliated with the listing brokerage, and one-to-one promotion between these licensees and their clients, is not considered public advertising.
Common examples include divorce situations and celebrity clients. It allows the listing broker to market a property among the brokers and licensees affiliated with the listing brokerage. If office exclusive listings are displayed or advertised to the general public, however, those listings must also be submitted to the MLS for cooperation.
Does Policy Statement 8.0 require listings to be submitted to the MLS if they are advertised to a select group of brokers outside the listing broker's office?
Yes. "Private listing networks" that include more brokers or licensees than those affiliated with the listing brokerage constitute public advertising or display pursuant to Policy Statement 8.0. Listings shared in multi-brokerage networks by participants must be submitted to the MLS for cooperation.
Does Policy Statement 8.0 apply to non-active listings?
Yes. Policy Statement 8.0 applies to any listing that is or will be available for cooperation. Pursuant to Policy Statement 8.0, "coming soon" listings displayed or advertised to the public by a listing broker must be submitted to the MLS for cooperation with other participants. MLSs may enact "coming soon" rules providing for delays and restrictions on showings during a "coming soon" status period, ensuring flexibility in participants' listing and marketing abilities, while still meeting the participant's obligations for cooperation.
What if the listing isn’t ready to be shown? Are “Coming Soon” or “Delayed showing” listings allowed under Policy Statement 8.0?
The concept of “Coming Soon” and “Delayed Showing” can be achieved within the local MLS. Listings which are truly not yet ready to be shown can be shared with the MLS’s brokers and agents to create exposure while the property is being prepared for showing.
MLSs can also add clarity to the coming soon and delayed showing process by defining specific statuses and showing requirements if these listings are to be included in the MLS. The most common implementations do not allow for showings of the listing until its status is changed to active, and any showings of the listing would immediately trigger that status change.
Does Policy Statement 8.0 require a broker to turn in every listing to the MLS within 1 business day of signing the listing?
No. MLSs have different local rules as to listing turn-in times. If a listing is taken and is not yet ready to be marketed/shown, longer timelines for turn in may apply in local markets. If a listing is marketed to the public, however, Policy Statement 8.0’s 1 business day turn-in timeline goes into effect.
How can an MLS address compliance?
Compliance is up to local determination. The policies in the markets previously discussed usually include an escalating process of warnings and fines. Reporting of non-compliance is often taken care of by the marketplace. When listings are publicly marketed, agents and consumers become aware and can report unsubmitted listings by MLS participants to the MLS.
What exclusive listings and property types are applicable under the new MLS Statement 8.0?
The obligations of Statement 8.0 were specifically adopted to address concerns with residential “for sale” exclusive listing contracts required to be filed with the service. Based on the Advisory Board’s discussions that did not include commercial properties, rental properties, and new construction developments with multiple properties (single family homes, condos, etc.) Those property types, and other exclusive listings that require mandatory submission, can be included in the application of Statement 8.0 at local discretion.
How will the new policy affect listings not yet available for showing and the calculations of “days on market?”
These are factors that can be determined locally. Brokers should discuss with their MLSs the desire to submit properties which are not yet ready for showings in the MLS. Brokers and MLSs should consider whether a new listing must immediately become active, whether a temporary "coming soon" or "no showings" status is allowed, and when "Days on Market" will begin in these scenarios.
Why was the time-frame within the recommendation updated to 'one business day'?
The MLS Tech and Emerging Issues Advisory Board held a conference call on October 30, 2019. Based on feedback and concerns over the time enforcement, the timeframe was changed from '24 hours' to 'one business day.'
The Key Points
Does the policy cover all property types?
The policy covers existing Residential properties. Commercial, rental, farm, land, builder and developer listings are exempt from the new policy.
Navarre MLS Rules require a property to be entered into the system within 2 business days of the effective date or a "Withheld From MLS" Form to be submitted.
When is the effective date? After all necessary signatures of seller(s) have been obtained unless otherwise indicated in the listing agreement or other documentation. (amended 2/03). The "unless otherwise indicated" date is the effective date that you have an agreement to be compensated if you sell the property (the listing term). The Code of Ethics Standard of Practice 12-4 states: Realtors® shall not offer for sale/lease or advertise property without authority.
However, under the Clear Cooperation Policy, the property must be listed in the MLS within one business day of any public marketing whatsoever. What is considered public marketing? Any exposure beyond the 4 walls of your brokerage:
How can I report an Off-MLS Property? It is expected that compliance will be dictated by market forces. The MLS is a self-governing system that relies on members' integrity. All complaints will be treated confidentially by Staff.
If you believe a property is being publicly marketed and is not listed in the MLS, you can submit documentation and request an MLS Review. The Navarre MLS requires documentation to investigate. Upload a file or image reflecting the public marketing and email to email@example.com. This documentation includes at least one of the following:
Can I still withhold a property from the MLS if the seller requests such?
Yes, within 48 hours of the effective date, submit a copy of the "Withheld From MLS" form to the NABOR staff together with a copy of the listing agreement. Remember, that if you subsequently decide to market the property, then it MUST be entered in the MLS within 24 hours.
What about "Coming Soons"?
Entering a property in the "Coming Soon" status (limited to 30 days) or "Temporarily Off Market" will satisfy the Clear Cooperation policy, although you will not be able to show the property or accept offers until the status of the property is changed to "Active".
Once you have a fully executed, effective listing agreement, these are your choices:
MLS Status Definitions
Active Status – The status used when a listing agreement has been executed but has not passed its date of expiration or been terminated by the listing brokerage, where the property is available to be shown, and where the seller has not signed a Contract for Sale and Purchase or similar agreement. If the buyer and seller have executed a Contract for Sale and Purchase or similar agreement, the Listing Participant may optionally leave the listing in an Active status if the agreement includes a First Right of Refusal (“Kick-out”) clause of seventy-two hours or less.
Coming Soon - The status used when a listing agreement has been executed, but is not yet ready for showing or the listing term has not yet commenced. The property may be publicly marketed, but is not available to view or accept offers. Coming soon status will automatically convert to Active status after 30 days. Days on market accrue. Listing is not disseminated in any feeds.
Temporarily Off Market - The status used when a listing temporarily does not meet the criteria to be in Active Status but where the seller has not signed a Contract for Sale and Purchase or similar agreement, nor have they cancelled their listing agreement. The property may not be publicly marketed, and is not available to view or accept offers. Days on market do not accrue.
MLS Entry Effective date - The latter of the execution date and the date the seller authorizes you to sell the property.
What if an agent outside my office reaches out to me and requests to see an "off MLS" listing of mine?
Under the NAR Code of Ethics, if an agent contacts you that you did not reach out to directly, you must honor a request to show the property.
Am I allowed to advertise that I have listings in a certain neighborhood without putting the listings in the MLS?
The policy does not limit an agent’s advertisement of their business generally. This policy is focused solely on publicly marketing a specific listing. If the intent of a communication is to publicly market a specific listing, then the listing must be in the MLS with one business day.
What is the penalty for violating MLS Policy? Enforcement of the Rules is addressed in Section 9 of the MLS Rules.
At each stage, the participant and subscriber shall be notified in writing.
Failure to enter a listing within two business days is a Class 2 Violation.
Failure to enter a listing within one business day which you have publicly marketed (Clear cooperation) is a Class 3 Violation
Failure to properly register a Non-MLS listing (Withheld from MLS) is a Class 3 Violation
Class 3 Violations are subject to the following discipline:
What is the penalty for violating the Code of Ethics: Remedial educational sessions, fines, probation, and/or suspension.
Scenarios for an executed listing agreement:
Our aim is always to educate and assist our members with compliance...
The Clear Cooperation Policy aims to ensure that consumers have equal access to all available properties through a transparent process which promotes Fair Housing. And it bolsters cooperation and advances the positive and pro-competitive impacts that cooperation fosters for consumers.