Pre-market, office exclusive listings guidance underway, NAR says 

The National Association of Realtors will soon offer policy recommendations on a topic that has been the subject of intense controversy in the real estate industry for over a year: pre-marketing.

In a closed meeting of the NAR Multiple Listing Service Issues and Policies Committee at last month's Realtors Legislative Meetings, NAR Senior Director of Engagement Rodney Gansho announced that NAR is creating guidelines for pre-market and office exclusive listings.

"You're the first ones being told this," Gansho said. "We had hoped to have it launched and pushed out before we came to RLM, but we're still working on the exact wording and the approach."

Though the committee meeting was closed to the press for the second year in a row, Real Estate News was able to obtain a recording of the session.

What the guidelines will cover: Pre-marketing continues to be debated extensively across the industry, largely due to Compass' promotion of its 3-phased marketing strategy and resulting court battles.

Gansho noted there is "a lot of misinformation and fuzziness as far as terminology and application" in regards to pre-marketing, which the NAR guidelines will seek to clarify.

Gansho said those guidelines will cover:

• Different marketing strategies and listing options

• The listing broker's role in these types of strategies

• Seller disclosure forms and requirements

• New state legislation about private listings

• MLS as a pro-competitive and pro-consumer system

• The impacts of "active" and non-active listings on VOWs

• Local MLS rules enforcement

• A broker compliance check for NAR's Clear Cooperation Policy, which Gansho said "is still applicable when you talk about pre-marketing and office exclusives." (CCP requires listing brokers to submit listings to a Realtor-affiliated MLS within one business day of being publicly marketed.)

Enforcement remains local: "Some people are saying we're changing our enforcement," Gansho said, but "nothing's changed."

"Enforcement has always been local," Gansho said. "We rely on you to do the due diligence and use due process and your procedures that look at the facts and circumstances to make a determination if something is a violation or not."

"You don't have to talk about possibilities of what is and isn't a violation — wait for complaints and the facts related to those, and have the committees look at that information," Gansho added.

Guidelines — not mandatory policies: Before the dissolution of NAR's MLS advisory board, the board's chair, Michelle Bailey, said it discussed the need for more MLS policy resources.

In the wake of the Sitzer/Burnett commissions trial, NAR has shied away from approving new mandatory MLS policies, opting to re-assess existing policies with an eye toward "de-risking" and issuing guidelines instead. For example, NAR earlier this year published an Assessing 'Coming Soon' Listings Checklist, as well as a related FAQ.

"We do not have a policy on 'Coming Soon,' but there's still direction and guidance and leadership that the national association can provide to best serve the community and best serve MLSs in establishing defensible operations in how you structure your coming-soon policy and what brokers need to do when they consider coming-soon listings," Gansho said.