NAR’s pre-market guidance stresses broker responsibility
Sellers decide their listing’s level of exposure, NAR says. But brokers should explain how each option serves their best interest — and get disclosures signed.
The National Association of Realtors has rolled out its promised guidance on pre-market and office exclusive listings.
On July 9, the trade group posted the four-page resource, which explores office exclusive and pre-market listing options and a broker's role and responsibilities, among other topics.
The guidance emphasizes that sellers choose the exposure their listing gets, that it is a broker's responsibility to explain their options and get the required disclosure forms signed, and that brokers are expected to follow MLS rules, whose enforcement "is the responsibility of the local MLS."
NAR informed MLS executives that the guidance was coming during a closed meeting at its midyear conference last month. However, the guidance's audience is agents and brokers — not MLS executives.
Real Estate News has asked whether NAR plans to make policy recommendations to MLSs on this topic and will update this story if and when a response is received.
Office exclusives: The guidance explains that an office exclusive listing is filed with the MLS and shared with agents within the listing firm depending on the listing contract. But is not publicly marketed and is not disseminated to agents and brokers who are not within the listing firm.
"The choice to deploy this option belongs entirely to the seller in accordance with their best interests, which can include health, safety, privacy, or any instance where their individual interests outweigh the benefits of broad market exposure and cooperation with other brokers through the MLS," the guidance reads.
"It is the agent's duty to advise the seller of the MLS benefits they are waiving or delaying with this option. The broker is required to obtain the signed seller authorization/disclosure with Office Exclusive Listings."
The document does not define "publicly marketed" or specify which "MLS benefits" agents should advise sellers they are foregoing.
Pre-marketing: The guidance points out that pre-marketing options are "set locally" by MLSs and lists Coming Soon statuses and Delayed Marketing Exempt Listings (DMEL) as examples of pre-market listing options.
The guidance stresses those options must "[c]omply with the local MLS rules, (submission requirements, deadlines, etc.), and [f]ollow the seller's informed instructions."
Active vs. non-active listings: NAR's guidance stresses that all active listings in an MLS must be made available through a VOW data feed and that MLSs determine what qualifies as an active listing locally.
"However, the categorization of a listing and the corresponding status must be an accurate representation of the availability of the property," the guidance reads.
"Some MLSs … set rules establishing that a listing is 'non-active' or 'off-market,' if the property is not available to be shown, and/or not tracking Days on Market, and/or not requiring a list price, and/or by not tracking any price change history."
Heavy on the role of the broker: The guidance says it is "imperative" for listing brokers to explain all of a seller's listing options "including how each aligns with the seller's goals, marketing strategy, and critically, how each option serves the best interest of the seller" before a seller chooses an office exclusive or pre-market listing.
If a seller does, "the required disclosures must be executed." That seller disclosure form should reveal the professional relationship between the broker and the seller, acknowledge "that the seller understands the MLS benefits they are waiving or delaying with the exempt listing, such as broad and immediate exposure of their listing through the MLS" and confirm "the seller's decision that their listing not be publicly marketed and disseminated by the MLS as an office exclusive listing or that their listing will not have immediate public marketing through IDX and Syndication as a delayed marketing listing."
The guidance also stresses that local MLSs may have additional disclosure requirements, policies, rules and listing options. Additionally, it urges brokers to check with their state license authority regarding laws — like those recently passed in Washington state and in Connecticut — requiring the public marketing of listings.
Preventing other brokers from marketing: The document's broker compliance check urges brokers to comply with MLS rules — including the Clear Cooperation Policy (CCP), which requires listing brokers to submit listings to the MLS within one day of being publicly marketed.
If a listing broker wants to tell a broker or agent outside of their brokerage about a listing, the broker should get the seller's authorization to do so. To avoid triggering CCP submission requirements, brokers can engage in "one-to-one broker-to-broker communication" but also must "[e]nsure the receiving broker does not market the property — including a showing."
The guidance does not say how the listing broker can prevent the receiving broker from marketing the property.