The MLS: A Way Forward on Exclusive Inventory Strategies

In my last post on the NAR MLS Policy Statement 8.0, I wrote that offering a solution would take a few thousands more words and that I was already at 3,000 or so. Well, here is that offering of a solution… or at least a way forward. It might not be the only solution, or the best solution, or the ideal one, or even a good solution… but it should get you all thinking.

This is more or less a reprint of a VIP post I wrote back in July. I laid out these ideas for that audience first, but with the NAR policy changes out in public now, and this topic worthy of a wider public discussion, I thought I would make them available to all, with some updates.

TL;DR Summary

This post is exceptionally long, even by my standards — almost 6,000 words. So let me summarize it up front for you, then you can decide whether you want to dig into it or not.

  • Change the definition of Participant to simply mean those brokers and agents who are willing to treat the MLS as the Primary Marketplace for properties
  • Primary Market means that the MLS is where a property will be marketed/advertised first, before it is market/advertised anywhere else.
  • Application-and-waiver system for flexibility, allow for limited usage of Off-MLS and Coming Soon marketing for rare situations that truly warrant them.

The choice offered to brokers and agents, then, is a simple one: either join the MLS, or don’t. Either market your listings to everybody else, or don’t and keep them as exclusives.

We can’t forget that the MLS is a private organization, a cooperative of competing brokers who choose to come together for mutual benefit. It isn’t a requirement of having a real estate license, nor is it mandated by any law or any regulation anywhere. If a broker decides that his private benefit of going off-market is greater than the benefit of being part of the private club that is the MLS, then he should have every right to pursue that private benefit… outside of the MLS.

There are no antitrust concerns.

Understanding the MLS

With the summary out of the way, let’s dive in.

A brief overview of the MLS, its past and its present, might help us all understand my recommendations for the future.

The very origins of the MLS are shrouded in history, but one imagines it was no different than how the NYSE got its start: a bunch of merchants hanging out at the local tavern starting to talk. The real estate men back in the horse and buggy days likely knew each other, hung out at the same tavern or public house or watering hole, and started telling each other about some property they had agreed to sell for the owner. “If you bring me a buyer, I’ll hook you up!”

What we do know is that by the turn of the 20th century, when NAR itself was founded, the practice of sharing information on properties — as well as sharing compensation to incentivize other brokers to bring them buyers — was commonplace. The original name of NAR, after all, was the “National Association of Real Estate Exchanges.”

The MLS has been remarkably stable and consistent over the course of its existence. Yes, the technology of delivering the information has changed from printed books to client-server over dialup to web-based, but the core of the MLS has always been about (a) complete inventory, (b) cooperation and compensation, and (c) accurate data.

In pursuit of those three goals, the MLS over time evolved a rather large set of rules and policies and regulations for its members that range from the obvious to the incredibly arcane and bizarre. Nonetheless, those rules and policies, which include the various policies surrounding data input, usage, and distribution, are at the heart of the modern MLS.

The Impact of the Internet

I have written on this many times over the years, including in the March Red Dot on the Future of the MLS. Since that report goes into far greater detail, I recommend it for subscribers who wish to dig in deeper. But fundamentally, the Internet changed the fundamental value equation of the MLS. From the March Red Dot:

What the MLS forgot (and to this day refuse to understand) is the fact that the value of the MLS in the past was that it was the most cost-effective way of advertising a property for sale.

When newspaper classified advertising was the primary way to let consumers know that a particular home was for sale, the cost to brokers and agents to take out those few lines of classified advertising was exorbitant. That cost went up if the ad were to include even a single black and white photograph, and went up dramatically for things like full or half-page ads in the local newspaper for a few weeks.

But in those pre-internet days, buyers would call a local real estate broker when they wanted to know what homes were on the market. They were forced to, since a few lines of type in the local newspaper provided very little information and there would be but a phone number to call in the ad. Or they would skip the telephone game altogether and stop by a local real estate broker’s office, talk to the nice receptionist, meet with an agent and ask what homes were for sale in their price range and meeting their criteria.

As a result, letting other real estate brokers in the area know about a house for sale became the most cost-effective way of advertising a home for sale. This is not to say that brokers and agents didn’t pay the newspapers, didn’t take out ads in magazines and circulars, put up posters and yard signs, and mail postcards and newsletters or whatever else. It is simply to say that the MLS was the most cost-effective way of advertising a home for sale in the pre-Internet era. For a flat monthly fee, a brokerage could advertise all of the homes that he had been hired to sell for clients, as well as view the entire inventory of homes that other brokerages had advertised in the MLS.

Like many other exchanges rooted in the need for sellers to advertise what was for sale, and for buyers to find out what was for sale, the MLS became the marketplace for houses. Even as the MLS evolved from gatherings at a local watering hole to printed books to some of the earliest computerized networks, the it remained extremely valuable for brokers and agents because it was the most cost-effective way to advertise a home for sale.

And then, the internet came along.

Because listings are fundamentally advertisements of properties for sale, once the MLS was no longer the most cost-effective way to advertise, its value started eroding almost immediately.

We have seen some of the effects of that value erosion already. But for our purposes, we’re going to focus on one of those effects: the proliferation of systematic and programmatic “Coming Soon” and other off-MLS marketing of properties.

The Modern “Coming Soon” Strategies

To begin, let me quote from the March Red Dot again to make sure we’re talking about the same thing. Because pocket listings, Coming Soon, and Off-MLS marketing have existed from the very beginning of real estate. It is, if you will, the default model until the MLS came of age.

From the Red Dot:

Private “pocket listings” have always existed in real estate. Indeed, it’s more or less the norm in commercial real estate, which is only distantly related to residential real estate. (Commercial real estate is as similar to residential real estate as investment banking is to local credit unions.)

In residential real estate, however, pocket listings were usually reserved for special and unique situations, found often in the ultra-luxury segment where the client has serious privacy concerns. A celebrity, for example, might not want random fans and tourists pretending to be buyers touring his Beverly Hills mansion. An athlete might want to keep his free agency intentions secret by not putting his house on the market. Or the owner may have a home filled with priceless artwork that she doesn’t want the hoi polloi and potential thieves knowing about.

Whatever the reason, when the client’s privacy concerns were paramount, brokers and agents often agreed to keep the listing private, sharing it only with a trusted network of other agents, and showing the home only to a small group of qualified buyers who would be vetted carefully.

Everyone knew such situations existed, and everyone was okay with such exceptions to the general rule about putting the property in the MLS for it to be exposed to the entire marketplace.

Similarly, so-called “coming soon” listings, which the listing agent knows he’s going to get but isn’t ready to put it “on the market” have always existed in real estate as well. Many a broker and agent have memories of Monday morning sales meetings when agents would go around the room and talk about a listing he’s going to take in the next few days (or has already taken, but hasn’t had repairs or painting done, so the house wasn’t ready to show) in case anybody in the room has a buyer who might be looking for a house just like it.

As I mentioned in the report, however, in recent years, this once-rare situation where a unique client situation demands privacy over marketing and the rare Coming Soon situation where the house really does need a lot of work to make ready for the market have evolved into actual strategies and programs.

It may be because real estate coaches have been teaching using Coming Soon as a strategy for years. For example, here’s one such example from Wade Webb:

Though the language of the Wade Webb strategy makes it seem like the reason for Coming Soon is low inventory, that just doesn’t actually add up. Listing agents can’t get all the marketing they promised the seller? Does the seller care if the home sold for asking price within 48 hours? Likely not. Buyer agents are frustrated because the listing agent moved too quickly? Last I checked, the seller has to accept the offer, so what’s this about the listing agent moving too quickly?

Then you have the broker-level programs that have flipped the script — what was once a rare exception to the rule of open market exposure via the MLS is now the standard operating procedure, and only those properties that do not get sold during the “Coming Soon” period are put on the MLS.

The most (in)famous of these is from Compass:

But as night follows day, once a brokerage as big and as prominent as Compass started an actual program to encourage off-MLS listings, it was inevitable that others would follow suit. So we now have Howard Hanna, the #4 largest brokerage in the country, launching its own Coming Soon program:

It’s just a matter of time before the other large companies, from Realogy to Re/Max to Keller Williams and HomeServices of America, to all follow suit. It’s a bit of an arms race situation at this point.

These modern Coming Soon strategies have very little to do with low inventory, or with customer service, or with anything other than using private listing information to create competitive advantage.

We know this because the brokerages themselves who are doing this tell us. See my previous post and the comments from Rory Golod of Compass and Hoby Hanna of Howard Hanna.

Mike Delprete’s Take on Compass

But a more erudite take on this phenomenon comes to us from Mike Delprete’s series on Compass, particularly when he discusses the endgame of Compass’s growth strategy:

The secret to building audience with exclusive content is scale: Compass needs significant market share for this strategy to work. Pocket listings, which are withheld from the MLS for a period of time, have been around for years, but never employed at this scale. Compass needs to advertise so much exclusive content, including coming soon listings, that consumers can’t afford to miss it.

The evidence that Compass is strongly promoting exclusive content is plainly visible on its web site. In fact, exclusive content is the primary call-to-action on Compass’ web site, starting with top billing on its site navigation.

Scrolling down the page, the first content after the search box is a section highlighting exclusive listings before they hit the market.

Delprete goes onto illustrate just how much focus and emphasis Compass is putting on its exclusive listings, all of which are done as a Coming Soon, which means that these exclusives may eventually end up on the MLS… if it doesn’t sell first.

The point of the exclusive listings, Delprete thinks, is to become a consumer destination and platform:

It would be naive to think Compass has raised over $1.1 billion in venture capital to become just another real estate brokerage. Even adding adjacent services like mortgage doesn’t change the core economics of the broker model — bigger changes are required to justify its valuation. Compass has larger ambitions, and it’s likely that its big hairy audacious goal is to become a real estate platform. The evidence suggests the following strategy:

  • Build market share (listings) through aggressive agent recruitment and acquisition.
  • Once market share is high enough, encourage sellers to list exclusively on Compass for a period of time.
  • Leverage exclusive content to drive consumers to the Compass portal.
  • Launch a Compass platform that generates and distributes leads to agents.
  • With platform power, transition the role of an agent (Redfin/Purplebricks/Uber), taking a larger cut.

Compass is a real estate disruptor on a scale never before seen in the U.S. With deep pockets and big ambitions, its impact on the real estate industry is only just being felt. Compass, its investors, and a number of well-funded peers are aiming for massive change in an industry that has resisted massive change for years. Whether its strategy succeeds or fails, the die is cast and the race is on.

I think Delprete is exactly on point as to what Compass is hoping to achieve. In the same vein, when Howard Hanna launches its own Coming Soon program, it may be seeking to do the same, or it may be doing it in order to keep up with Compass.

Whatever the reason, this modern manifestation of Coming Soon is entirely incompatible with the existence of the MLS in the first place. As I wrote previously:

If we as an industry are going to have the MLS structure, then Coming Soon and off-MLS marketing must be relegated to what it once was: rare occurrences for the truly unique client situation. MLS leaders need to stop wringing their hands as if they are powerless to stop the destruction of the system from within and start taking action.

Okay, so what action should the MLS take?

What Does it Mean to Participate in an MLS?

I believe the key lies in redefining the term Participant as it applies to the MLS. I suggested as much in my original post on RealScout, but let’s delve into this more.

NAR’s Handbook on Multiple Listing Policy defines “Participant” in §2:

Mere possession of a broker’s license is not sufficient to qualify for MLS participation. Rather, the requirement that an individual or firm offers or accepts cooperation and compensation means that the participant actively endeavors during the operation of its real estate business to list real property of the type listed on the MLS and/or to accept offers of cooperation and compensation made by listing brokers or agents in the MLS. “Actively” means on a continual and ongoing basis during the operation of the participant’s real estate business. The “actively” requirement is not intended to preclude MLS participation by a participant or potential participant that operates a real estate business on a part-time, seasonal, or similarly time-limited basis or that has its business interrupted by periods of relative inactivity occasioned by market conditions. Similarly, the requirement is not intended to deny MLS participation to a participant or potential participant who has not achieved a minimum number of transactions despite good faith efforts. Nor is it intended to permit an MLS to deny participation based on the level of service provided by the participant or potential participant as long as the level of service satisfies state law. (Adopted 11/08)

The history behind the key highlighted phrase is an attempt by NAR, various brokerages, as well as a number of MLSs to try and deal with the “paper brokerage” problem from a few years back. These were companies that had a brokerage license, got access to the MLS, and then setup businesses mostly involving  using IDX websites to generate leads and then referring them to other brokers and agents for a fee.

This section was trying to say that the MLS is for “real brokerages” only who are actually trying to sell real estate, not for paper brokerages who just use the MLS to generate referral income.

The problem with that, as evidenced by the rest of §2, is that there is no good way to determine whether a company or an individual agent is a “paper broker” or a “real broker” who happens to do referrals. All the language about part-time, seasonal and good faith efforts and minimum number of transactions and all that is an attempt to try and draw lines where such line drawing is quite difficult to do.

The other problem with §2 is that NAR had to be very careful about antitrust issues, seeming to allow discrimination against low-service brokerage models or other innovative businesses.

In addition, the entire practice of cooperation and compensation is under legal and regulatory assault today. If cooperation and compensation are ruled as an unlawful violation of federal and state antitrust law, what then?

I propose, therefore, a change in the definition of Participant:

A Participant is a broker or agent who utilizes the MLS as the primary marketplace for properties.

I’m sure that the people on the various NAR committees and CMLS workgroups and elsewhere can come up with more precise language. But the idea is a simple one and it involves defining what it means for a property to be on the market, which means defining “marketing” a property.

What Does it Mean to Market a Property?

I recommend something along the lines of:

Any dissemination of information to the public about a property for sale, lease, or exchange within the next 180 days with commercial intent shall be considered as marketing.

Again, people with more experience than I have in working on various committees can wordsmith the above to greater precision. The point is to distinguish between telling service providers, such as photographers and stagers, and telling potential buyers that a property is about to come on the market. The former is a necessary part of getting a house ready to market; the latter is a dodge.

Practically speaking, there is no way to stop an agent from telling her neighbor about a house that’s about to come on the market. There has never been. But that kind of one-off insider information has been a fact of real estate from the earliest days of the Republic. We’re not looking to stop that. We are looking to stop the kind of systematic and programmatic Coming Soon and Off-MLS strategies that undermine the entire edifice.

I would leave the definition broad on purpose. Let each local MLS figure out how to adjudicate what is and is not marketing. But it occurs to me that it really isn’t that much of a challenge. In most cases, most rational people are able to distinguish between a marketing communication and a non-marketing communication. Sending a blast email to 300 past clients is marketing; sending at text to your spouse about how you just landed a listing is not.

Primary Marketplace for Properties

The Rules and Policies found in every single MLS require the mandatory submission of listings. From the Model Rules and Regulations for an MLS provided by NAR:

Listings of real or personal property of the following types, which are listed subject to a real estate broker’s license, and are located within the service area of the multiple listing service, and are taken by participants on (indicate form[s] of listing[s] accepted by the service—See Notes 1 and 2) shall be delivered to the multiple listing service within _____ (usually 48) hours after all necessary signatures of seller(s) have been obtained: (Amended 11/01)

a) single family homes for sale or exchange

b) vacant lots and acreage for sale or exchange

c) two-family, three-family, and four-family residential buildings for sale or exchange

The additional concept that needs to be added, likely to the Rules and Regulations, is the idea of “primary marketplace.” The idea is simple: the primary marketplace is where the listing was first advertised. Priority in time is the key concept here.

If a listing appears anywhere other than the MLS first, then the MLS is not the primary marketplace. It’s a simple rule, and has the benefit of drawing a bright line that is easily understood, easily defined, and easily enforced.

Making Coming Soon and Off-MLS Rare Again

Finally, in conjunction with the above, the MLS needs to simply ban all Coming Soon and Off-MLS marketing of properties without a specific waiver from the MLS. There have always been some unique situations where both the Coming Soon and the Off-MLS were warranted. But how to preserve the ability of brokers and agents to service such unique clients and unique situations, without throwing open the doors to exploitation?

The way to handle that, I think, is to allow for waivers on a case-by-case basis to be issued by the MLS upon application by the Participant. There has to be a strong pro-consumer or pro-public justification for such a waiver to be issued, with privacy being the main consideration.

Rather that trying to craft a detailed rule and “safe harbor” provisions and such, just put it to the judgment of the MLS staff or other brokers and agents to see if the application and the justifications offered pass the smell test.

So if your client is a Hollywood superstar and doesn’t want anybody to know he’s selling his house, the MLS can accommodate that. You need to apply for a waiver, with whatever supporting documentation that the MLS requires, and then get a waiver. Systems and procedures will need to be put in place for the MLS to handle such applications and issuing waivers, but that’s the kind of thing that the MLS tends to be very good at doing.

If, on the other hand, you are claiming that 300 of your clients who all live in the same three subdivisions of moderately priced homes have strong privacy concerns… that just doesn’t pass the smell test.

Antitrust is Not an Issue

An important point here is that unless I am very mistaken, there are no antitrust issues with any of the above.

There is zero discrimination of different business models; indeed, by dropping all of the references to offers of cooperation and compensation, the above may remain in place even if some legal or regulatory disruption comes to compensation practices.

There is no discrimination to becoming a Participant, other than the Primary Marketplace rule. The MLS merely has to be first, not the only way to market a property or even the most important way. There is no prohibition against advertising properties wherever the broker or agent sees fit… as long as the MLS is the first place for marketing and advertising a property.

There is no impact on cost to consumers.

There is no impact on discouraging innovation, unless that innovation is to eliminate the MLS, which we address below.

And because the whole point of the exercise is to limit the number of off-market listings that have less visibility to buyers and to the public, the entire strategy tends to be pro-consumer and pro-competitive rather than less. It is the systematic Coming Soon and programmatic Off-MLS marketing companies that have to answer questions about transparency and data access, not the MLS.

Some Practical Considerations

Now, there are a few practical considerations here for the MLS. Most of these come from discussions with Sunny, my recovering broker wife, whose experience with NWMLS based in Seattle is an excellent reference for anything Coming Soon related, as NWMLS has some of the toughest rules around Coming Soon that have been modified and tweaked over the years.

Nonetheless, this is hardly an exhaustive list. It is more of a start of a list of considerations; you can add to it with your experience in your local markets.

Go Live Date

First, because of the day to day realities of taking listings and getting a house ready for market, MLS will need to consider adding some kind of a “Go Live Date” field, if one does not already exist. The distinction there is between the actual listing contract date (when all signatures were acquired) and the day when the property will begin to be marketed.

This was the original impetus behind Coming Soon, so the MLS has to be careful not to create such a giant hole as exists today that enables all of the systems, programs and strategies using Coming Soon to create off-market exclusives and in-house buyers and such. I lean towards allowing greater latitude in exchange for more transparency: put the property into the MLS as you put together the photographs, the marketing materials, etc. but don’t have it visible to anyone else. It becomes visible on the Go Live Date, and that is when Days On Market starts ticking and that is the date to be used for the Primary Marketplace rule. The mandatory delivery date, however, can be tied to the original listing contract date, so 24-48 hours after the signatures are complete, the listing is in the MLS, but not yet marketed.

The Client Demands It

Second, there are situations where the seller wants the listing agent to market the property privately, to his private network of contacts, before going public with it, because the experience of selling is just so painful. I know, because I’m someone who has done just that. It sucks to pile the kids into the minivan for an hour every time there’s a showing.

I believe that the waiver process provides relief in those situations, but that requires that the waiver process is fairly efficient and speedy: an agent can’t wait a month to hear back from the Board of Directors to see if his waiver request was granted. That does create the need for the MLS to setup a good waiver process and staff it to ensure proper level of responsiveness.

If it were my MLS, I’d delegate the authority to staff, and have the staff review the waivers with either the Board or a designated committee on a regular basis to ensure that the waivers are being issued under proper guidelines.

For practical purposes, I think it’s better to provide discretion to the human beings issuing waivers. Most people can see the difference between an agent whose client is making a special request versus a brokerage who is using the loophole to create a program of off-market activity.

Office Meetings, Agent Networks, Email Lists

Third, and this is likely the biggest practical issue, the distinction between public and service providers creates a large gray area: telling other brokers and agents about a property that is not yet being marketed. This is a potential exception that swallows the rule, but it is also (a) what has happened for a hundred years or more, (b) impossible to enforce, and (c) too much interference with brokerage practice and brokerage value if the MLS gets too involved.

Perhaps it’s because of my legal background, but I am not a fan of rules that everyone is going to ignore. It’s better to change the rules such that most people will follow them, which allows you to enforce the rule against the extreme outliers. The speed limit is a good example of such a rule — most folks don’t obey the 55 MPH speed limit, but they do frown on some crazy nut going 130 MPH down the freeway. That implies that the speed limit ought to be something more like 75 MPH.

Fact is, agents are going to tell their friends and colleagues about a listing they’re about to take. Brokers are going to have sales meetings where agents tell each other about a listing that’s coming and ask them to think about it for their buyer clients. Many agents have mailing lists of other agents in their area specifically for the purpose of marketing their clients’ homes to a smaller, more trusted network. There is no way to stop any of that, nor is it obvious that the MLS should try to stop that.

Again, the way I would suggest dealing with these issues is to adopt the soccer approach to things rather than the NFL approach to things. That is, provide general guidelines, such as the Primary Marketplace rule, then allow people charged with enforcement and adjudication more leeway when to call a foul and when to let it go.

It’s one thing to tell your office about a listing coming on market soon, and email two dozen other agents you know; it’s another thing altogether to be part of a formal, organized agent network that sits outside the MLS and has a database of Coming Soon properties. Like pornography, you’ll know it when you see it.

Answering My Own Question

In my last post, I wrote:

The question to be answered is not what to do about declining cooperation. That’s the old vision of the MLS as the enabler of cooperation and compensation. I would like to suggest that in 2019, the question is: Is the MLS the marketplace for buying and selling properties, or is it not?

If the answer is Yes, that dictates a certain set of clear answers centered around the MLS as the marketplace.

If the answer is No, then that dictates a different set of clear answers centered around the MLS no longer being the marketplace.

The path forward I have outlined above assumes that the answer is Yes. And it is designed to bolster and reinforce the idea that the MLS is the marketplace for buying and selling residential properties.

If, on the other hand, the answer is No… then that dictates a whole different set of strategies.

Policy Statement 8.0 and Timing

Now that NAR has put forth its Policy Statement 8.0 for public commentary, I’d like to add something else here.

The November Annual Convention, when this issue will be debated and voted on, is kind of critical. I am of the opinion that the MLS and those brokerages who still answer Yes to the question above do not have time to wait. I think this issue must be forced and must be voted on in November.

Why?

Because time is not on the side of the MLS here. Today, we know of only two large brokerages, Compass and Howard Hanna, who have implemented systematic exclusive inventory strategies. But it seems foolish to think they’re the only ones. In fact, if I were advising a brokerage, I’d advise them to launch their own exclusive inventory strategies if only to keep up with the competition.

If more time passes and more large brokerages and national franchises get into the exclusive inventory game, it becomes harder and harder for the MLS to do anything about this problem. Say nothing gets done in November, and this whole issue gets kicked back to committee or whatever. Say another year passes. By next November, NRT and HomeServices might have their own Coming Soon strategies in place. eXp Realty with its 20,000 agents might launch something too. A bunch of smaller firms may band together to do their own Coming Soon strategies.

Will it somehow be easier for the MLS to demand that it be the Primary Marketplace a year from now? Two years? I don’t think so. If the MLS is going to act, then it needs to act now. Not a year from now. Not after more committee meetings. But right now. Have those meetings now, so that you can be ready in November, when this whole thing will go down. But do not procrastinate on this issue.

Either the MLS is the marketplace or it is not. Wait a bit longer, and kick the can down the road a bit further, and that question will be answered for you by events.

Go Your Own Way

In summary, the concept then is to change the definition of Participant to simply mean those brokers and agents who are willing to treat the MLS as the Primary Marketplace for properties, which means that the MLS is where a property will be marketed/advertised first, before it is market/advertised anywhere else.

With the application-and-waiver system, the MLS can allow for limited usage of Off-MLS and Coming Soon marketing for rare situations that truly warrant them, and grant waivers freely to brokers and agents who aren’t trying to abuse the exception to the rule.

With a little bit of common sense, most of the MLS subscribers and Participants will understand what you’re trying to accomplish on their behalf and agree with those rules.

The choice offered to brokers and agents, then, is a simple one: either join the MLS, or don’t. Either market your listings to everybody else, or don’t and keep them as exclusives. Your choice. Either make the MLS the Primary Marketplace, or go your own way, with our blessings. Your choice.

This is exactly the choice that brokerages have with IDX: either you’re all-in, or you’re all-out. No one would accept someone belonging to IDX but somehow leaving 70% of his own listings out of IDX while he gets the ability to use everybody else’s listings to generate leads. Why would it be different for the MLS as a whole?

After all, we can’t forget that the MLS is a private organization, a cooperative of competing brokers who choose to come together for mutual benefit. It isn’t a requirement of having a real estate license, nor is it mandated by any law or any regulation anywhere. If a broker decides that his private benefit of going off-market is greater than the benefit of being part of the private club that is the MLS, then he should have every right to pursue that private benefit… outside of the MLS.

The antitrust concerns pop up only when the MLS uses its market power to discriminate against certain business models; there is no such concern here. All business models, all types of brokerages, all types of agents are welcome… as long as they too want to be part of the MLS. If not, let them go their own way.

I cannot think of a single argument from an antitrust point of view that says that a company or an organization is required to allow individuals and companies seeking its destruction and replacement to be part of that company or organization.

So, there it is. A path forward for the MLS as it comes to this thorny issue of Coming Soon and Off-Market listing activity.

There are layers and layers of details here, and levels of complexity that is really beyond the scope of a blogpost, even one that is almost 6,000 words. So let’s leave it there.

Thanks for reading! I hope it was useful in some small way.

-rsh

Get the latest post via email

13 Comments

Join the discussion and state your opinion. Some comments may be held in moderation. I try to get to them as soon as possible, but may be traveling or unable to approve comments immediately. I do not censor comments, but reserve the right to remove anything that looks like spam, trolling, or just outright inappropriate.

  1. ROB,

    I always go to Wall Street’s evolution and try to equate it to where the real estate industry sits today. In the old, old days when a customer had a 100 shares of IBM to sell there was only one choice for execution – the NYSE. In order to utilize the NYSE someone down the transaction line was a member of the Exchange.

    Today, that order to sell may trade on any number of unique marketplaces.

    There are still members of the NYSE. However, the NYSE does not mandate its’ members use the NYSE to buy and sell. Why? There may be a better location to satisfy the customer’s preference for a competitive price – in a reasonable time with as little stress and cost as possible.

    If the MLS believes it should continue to be “the marketplace” it shouldn’t be too concerned about how or where its’ members do their business. They get paid via dues not commissions – so, why care? Ultimately the business will naturally flow towards the better solutions.

    We can blame the whole thing on the Internet. 🙂

    Here’s some info to source my thoughts on the Wall Street analogy: https://en.wikipedia.org/wiki/Over-the-counter_(finance)

    We’ll see.

    Thanks,
    Brian

  2. Is it as simple as having a “Suite B” brokerage that isn’t a member of the MLS? That’s how many offices handle referral-only agents so they can hang a license without having to pay MLS fees.

    1. It could be. But if it were up to me, I’d punish intentional efforts to get around rules pretty harshly. That might be why I don’t run an MLS however, so there is that. 🙂

  3. There is one thing I now to be true about most ultimatums in life and in business. You should be very careful what you ask for and for what you demand, with the attached warning of “or else.”

    Argue as you may, those people that “gathered around the watering hole” to make the offer to enlist the help of others to sell what they had are today having an entirely different conversation. They are talking to specific people or even no one needing to help them sell what they have. And this is not permissible for what reason again?

    And so here is my suggestion to the organization that was formed to assist those in that “original gathering.” The MLS.;

    Adapt to the demands of “your productive users” – in other words, those who have listings to manage – or face the very ugly consequences.

    I have no doubt that the non-productive members of the MLS are concerned now. Those things that have been mandated to “level the playing field” no longer have the support of those who are “productive participants in the MLS.” And so what is really being challenged is the most current and accurate definition of what the MLS is today. And that definition goes something like this:

    “The MLS is an organization that sells memberships to non-productive participants with the promise to be able to leverage the business of the productive participants.”

    Think about it. If all of the productive participants deemed that the MLS was the entity that was defining the future limitations of business of real estate how long would they tolerate such nonsense? That’s like the cable company mandating that you pay for all the channels, plus ultra high speed internet, plus phone services or you would be denied access to any of the services. What’s that? That really happened. Well I guess maybe that’s why there is now DirectTV and Dish.

    Funny how that happens in business. Disrupters see a business in the process of downing and they enter the market with a garden hose on full force to jam down their throats. It’s true.

    All or nothing is NOT going serve the MLS industry well. That is for certain. And when you use Howard Hanna as an example remember, they are owners on at least one MLS and they still are making this strategic change to the way the make available and market their listings. Why? Because they are the party who defines the real estate business, not the MLS.

    They are a very big broker, they have smart strategies, they are not wanting any push back from a “data utility” impacting their obvious competitive market opportunity. And by the way, Howard Hanna has increased the traffic to their broker web site by more than 1.5 million monthly users in less than 3 months as a direct result of the introduction and local advertising around their “Find it First” strategy.

    And remind me how that is not a good thing for this “productive participant” of the MLS?

    Sometimes I shake my head at how complicated we make and adopt change in this industry. And lately, it seems my head has not stopped shaking on a daily basis.

    My suggestion, Wake up MLS industry. You’re at best the tail, and you are not in anyway the dog in this fight.

    1. You still haven’t answered the mystery of why these productive participants haven’t left the (as you say) antiquated and restrictive MLS already. I mean, if you’re in prison, wouldn’t you want to escape? Why are they sticking around?

      1. Because today it’s useful and worthy of membership?

        Tomorrow is the focus.

        We’ll see….

        😊

      2. ROB and Ken,

        I realize I broke protocol here and got between your dialog.

        I apologize 🙂

        Brian

      3. Brian – no such thing as “protocol” in a public comments section. It’s public for a reason. 🙂

        As for your observation, let me observe that any MLS that allows that “tomorrow” to come upon them without doing anything about it “today” deserves everything that is coming to them.

  4. Cooperation is the keyword, and why it isn’t working. Two-three years back Edina Realty refused to syndicate to 3rd parties, agents were telling sellers that their home would be networked within the brokerage for better offers, less hassle and a quick closing. For a time few Edina Realty listings hit MLS. It might sound good, but when sellers learn that their neighbor had 14 offers, they had one, there was a problem. Northstar MLS allows agents to list a Coming Soon for 3 weeks with zero showings. The fine for breaking the rule is $1000. There is no fine, no rules on Zillow. Understand that builders will list one or two homes in a development as a model, never list or report the others to MLS. MLS doesn’t allow branding on photos or videos on it’s platform, every other platform does. They have been disrupted but there is no turning back time.

    1. Lol. Edina Realty……. they are so stuck in the dark ages. And one of the worst agent splits in local real estate.

      Remember all of the lawsuits over ‘that’s my data’ and Zillow?

      What Rob, and so many other in RE are missing right now is https://www.eff.org/deeplinks/2019/09/victory-ruling-hiq-v-linkedin-protects-scraping-public-data

      With this? It’s the reason I have scrapers running all day to snarf up as much listing data as I can. Specifically out of spite, From Edina site. Why not? The ‘thats my data’ argument was just tossed out of the window. Welcome to 2019, you dinosaurs.

      Even IF Edina puts ALL of the listings behind a Portal ( lol, do it, go back to the stone age), well there are so many hundreds of local broker sites to scrape. and still get Edina listing data to boot. Just because.

      1. That is an interesting case; thanks for linking that. I’ll check it out now.

        However, one thing you’re missing is that scraping data is one thing; scraping PHOTOS is another thing altogether. It might not violate CFAA but it surely violates copyright. And the real value of listings is in the photographs. 🙂 So there is that.

      2. Rob- I had to reply to my post to reply to your comment-

        Sure, the photos are important…. but the listing data is even more so.

        Not being an MLS member, and being able to capture ‘withdrawn’ and ‘expired’ data is a huge resell. Or even knowing if a property was sold on the MLS, or just tax-based sales is also huge, for valuations.

        Tossing listing data into a database, and matching an address to a county parcel data set, to track the property and see if it sold, when, ect is trivial.

        But yes…. the photos are important too. Many options for that, if you really want photos. Most mapping solutions have an API that will let you load a county/state parcel data set with Parcel Id’s, to match a property, and pull imagery.

        For the people that want data, the photos are not the major concern…. It’s just finding the ‘right’ address to match the listing data to. It’s not about driving ‘clicks’ to a website that reposts the data either. It’s about pure data, and ferreting out distressed data points, ‘within’ the overall data that you combine it with. And using it, or reselling it. Lots n lots of uses for clean listing data.

        When a realtor buys marketing lists from Corelogic, First American ect? They are not buying home photos. They are buying an address, and any other data that they have ordered. (First American and Corelogic will happily supply the same listing data as well)

  5. It takes time for old school people to change their behavior in this residential real estate.This residential real estate industry functions like their leaders old and slow.
    There are alternatives to the MLS platform. As a real estate investor, I do not get any good information on a property like I get from the 3rd party portals.

Leave A Comment

Your email address will not be published. Required fields are marked *