CEO calls for MLS freedom from Realtor control 

In 2022, Anne Marie DeCatsye told her Realtor association she would only stay on for five more years and presented the leadership team with a thought experiment: If the association and its multiple listing service died in five years, why would it happen?

The team concluded that the MLS would fail "because of the legal landscape and the threat from larger firms starting a national MLS, or the syndication sites doing it," DeCatsye told Real Estate News in an exclusive interview.

"Why [would] the association close its doors? Because the MLS went away. That's not good. There needs to be value in the association outside of the MLS, and we need to be able to articulate that value."

That realization sparked Canopy Realtor Association's transformation: Unlike the vast majority of its peers, the Charlotte, North Carolina-based association and its MLS would become independent of each other, and the MLS would welcome non-Realtors.

Two organizations, two CEOs

"We have functionally and financially separated the MLS from the association," DeCatsye said. It's the type of move some in the industry have been recommending in recent years. 

"Our association board of directors has nothing to do with MLS policy. The only thing they see are the minutes of the MLS board meetings and the financials as the parent organization."

Completing that separation means that each organization will get its own CEO when DeCatsye leaves at the end of next year.

The association will continue to own the MLS, which DeCatsye sees no problem with, but she emphasizes that Realtor associations should no longer control or be financially dependent on an MLS.

"I'm astounded at how many [associations that own an MLS] not only are relying on funds coming back to them from the MLS, but they also, one, think they are the MLS; and two, they see their value as a Realtor association being the MLS, which kind of blows me away," DeCatsye said.

Membership mandates pose a 'liability risk'

DeCatsye started with Canopy Realtors as its in-house legal counsel in 2000 and became CEO in 2001. That legal training has imbued her perspective on how the association and its MLS should operate.

For instance, in light of the Federal Trade Commission's stance against anticompetitive tying arrangements in the real estate industry, plus the recent flurry of antitrust lawsuits challenging the National Association of Realtors' three-way agreement and the requirement by many MLSs that subscribers be Realtor members, Canopy MLS decided to offer an MLS-only option at the end of last year — something other MLSs have also started considering or implementing.

Mandating Realtor membership to access the MLS is "a liability risk waiting to happen," DeCatsye said.

Canopy Realtors has about 14,000 members, and Canopy MLS has more than 22,000 subscribers; currently, only 125 or so are "MLS-only" non-Realtor subscribers.

MLSs are more than 'just a service'

NAR has long characterized Realtor-affiliated MLSs as a service of their associations. By that measure, associations have a right to require membership to access the MLS. But DeCatsye objects to the idea that the MLS is a mere "service" and insists the MLS "has grown up."

"When you add on the tools and the training and the technology and the data licensing and data integrity and all the things that we do on the MLS side that have nothing to do with the Realtor association, … to say, 'Oh, it's just a service of the Realtor association' is a total injustice to what an MLS really does," she said.

'Local discretion' shifts risk to MLSs

Regarding NAR's attempt to minimize the legal risks of its policies, DeCatsye believes the trade group is not being fully transparent about what that means for MLSs. 

"I've heard [NAR CEO Nykia Wright] say 'de-risking our portfolio' multiple times, and then she started saying 'that doesn't mean we're shifting the risk to the MLS' — and I don't believe that's true," DeCatsye said.

Leaving policies to "local discretion," such as the implementation of NAR's delayed marketing exemption, automatically increases liability for local organizations, according to DeCatsye.

"It is being shifted to the local MLS, and if the MLS is owned by a Realtor association like ours, the entire organization is at risk," she said. Some MLSs have simply opted out of implementing the policy. 

Time for NAR to hand off MLS policy oversight?

But DeCatsye says the liability shift is "fine" by her, given that NAR-driven policies were at the root of class-action lawsuits nationwide.

"I would rather stand on our own two feet and not be reliant on NAR MLS policy, because that is what got us all in trouble," DeCatsye said.

She thinks it's time for another organization to take the reins on MLS policy regulation or MLS best practices. That could be the Council of MLSs, the Real Estate Standards Organization, the Association of Real Estate License Law Officials, state real estate commissions, or some new or revamped entity.

"I sure would rather be regulated by our real estate commission than the DOJ," she said.

NAR lobbyists should have 'done more'

Echoing the sentiment of some large brokers and other industry leaders, DeCatsye believes NAR should have done a better job of handling the commissions lawsuits.

"If NAR's legislative team had done more to educate members of Congress about what was happening, there could have been a federal legislative intervention into some of the lawsuits that were attacking the industry," she said. 

"The settlement amounts are just mind-boggling, and I don't think a lot of members of Congress have any idea."

Leaving 'Realtor' behind?

DeCatsye thinks the day could come when Canopy Realtors will be Canopy Real Estate Professionals instead — but it's not what she's pushing for.

"My mom was a Realtor," she said. "I still firmly believe in the role of the Realtor. I believe in the Code of Ethics. But if we are no longer a Realtor association, it's because of outside forces that we'll be ready for."