What’s the difference between MLS Policy Statement 8.0 and the Clear Cooperation Policy?

There is no difference. They refer to the same thing.

Are there certain forms that need to be used to address the Clear Cooperation Policy?

Depending on how your MLS implements the policy, you will need to check with your local MLS to see if they have any specific forms that need to be used. Texas REALTORS® has updated the Residential Real Estate Listing Agreement Exclusive Right to Sell (TXR-1101) and the Exclusive Agency Addendum to Listing (TXR-1403) to address the Clear Cooperation Policy. These forms will be available for member-use by May 1.

Will the May 1 deadline for the Clear Cooperation Policy be postponed due to the COVID-19 pandemic?

Members of the NAR MLS Technology & Emerging Issues Advisory Board met in late March and discussed among several items the impact of COVID-19 on MLSs and the real estate industry more broadly. Advisory board members determined that it is important to maintain the May 1, 2020, implementation deadline for the Clear Cooperation Policy. MLSs that have challenges implementing the policy by the May 1 deadline as a result of COVID-19 are encouraged to contact NAR’s MLS team for guidance and assistance. As always, MLSs retain the ability to adopt the Clear Cooperation Policy and delay its enforcement to account for an education period, technology platform updates, etc.

In Section 1.3 Exempt Listings, under the office exclusive policy, how is “brokerage” defined? If it is left up to the state regulatory law (in Texas, defined as the sponsoring broker) that may differ from the MLS participant ID. For these reasons, can it be defined in writing?

Section 1.3 and the Clear Cooperation Policy contemplate “brokerage” and “office” in line with state regulatory law rather than the MLS Participant ID assigned within local MLS platforms. These policies relate to a broker and their affiliated licensees. Look for further information on this issue at nar.realtor/clearcooperation. For purposes of Texas regulatory laws, “broker” means a sales agent’s sponsoring broker, individual, or business entity.

A neighbor notices that the house next door is for sale and asks his former listing broker for details on the property. However, the property is not listed in the MLS. If the neighbor’s broker contacts the listing broker of the property for sale and receives information about the sale of the property, will that constitute public marketing?

Yes. To begin with, the hypothetical says that a neighbor notices the house next door for sale, possibly through some sort of public marketing such as a “for sale” sign on the property. As such, even at this stage, the requirements under the Clear Cooperation Policy would be triggered if there was some sort of public marketing that was the cause for drawing the neighbors attention. However, if this is not the case, then the subsequent phone call where information is shared about the listing would then trigger the Clear Cooperation Policy and its requirements. The determining factor being a communication that shares “office exclusive” listing information outside of the brokerage, thus negating the need for sellers privacy and acknowledging that public dissemination of the listing is now in the sellers best interest.

What is meant by an email blast? Will one email outside the brokerage office be considered public marketing?

When discussing an email blast, NAR wanted to address communications to non-clients along with mass communications to the general public. Under the Clear Cooperation Policy, any communication to the general public (i.e., non-clients) would be considered public marketing, whether it is a single email or a mass email blast to multiple recipients.

How is a “coming soon” listing defined? Can it be defined in writing?

NAR MLS Policy does not define “coming soon” listings. The Real Estate Standards Organization has adopted “coming soon” within the Data Dictionary as a Standard Status. Additionally, MLSs may further define this locally as there is no NAR Policy on point.

It has been noted that the policy is not a “coming soon” ban. However, if an MLS does not adopt a “coming soon” status, participants of that MLS will not be able to take “coming soon” listings. If an MLS wishes to allow “coming soon” listings, are they required to adopt such status?

Neither the Clear Cooperation Policy nor any existing NAR MLS Policy requires the adoption of a “coming soon” status, “delayed status,” or similar handling. Implementation is left to a local determination. MLSs across the country have adopted “coming soon” as part of their Clear Cooperation Policy implementation, while others have decided not to. As such, whether an MLS wishes to allow for “coming soon” statuses in their market placed remains a local determination.

Will the policy apply to listings taken prior to May 1 if the public marketing doesn’t occur until after May 1?

The Clear Cooperation Policy would apply to those listings taken on or after the date of the local adoption of the policy.

Does the policy interfere with the fiduciary duty owed to a seller if the seller does not want the property in the MLS but does want to publicly market the property?

The policy does not interfere with the fiduciary duty owed to the seller. Prior to entering into a listing contract, listing brokers must explain their obligations under license laws, discrimination policies, local MLS rules, and more, including the new requirement for the Clear Cooperation Policy. This does not stop the seller from exempting their listing from the service when related to privacy concerns, nor does it require publication and syndication of their property on the Internet, but it does trigger a duty to inform and cooperate with other MLS participants and subscribers when a property is publicly marketed. By publicly marketing the property, the seller and listing broker have confirmed that market exposure is in the client’s best interest. MLS participants and subscribers should promote the consumer benefits of the service and how it can lead to the best price and most favorable terms.

The NAR FAQs state the policy was specifically adopted to address residential properties. The NAR FAQs further state that the policy excludes commercial properties, rental properties, and new construction developments. Although it has been verbally communicated that the policy does not apply to land and acreage, can it be stated in writing?

The obligations of MLS 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 NAR 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. We can take the request back to the advisory board to consider adding the specific language about land within the existing NAR FAQs. However, MLSs, as a matter of local determination, may continue to include additional property types as part of their mandatory submission policy which would then make the Clear Cooperation Policy applicable to those.

Will NAR grant latitude for MLSs who are actively trying to implement the policy but can’t do so by the deadline due to vendor delays?

NAR’s requirement is for the new policy to be adopted by May 1 in order to continue to receive insurance coverage. If there are technological issues delaying implementation of ancillary considerations such as “coming soon” statuses, those are not under any mandate to be implemented by the May 1 deadline.