What comes next for NAR’s Clear Cooperation policy? 

A National Association of Realtors policy that was implemented four years ago is being called into question following the industry rule changes that went into effect last month. 

The Clear Cooperation policy, which was approved in November 2019 and adopted in May 2020, requires brokers to enter listing information in the MLS within one business day of publicly marketing a residential property. The original rule was developed in part with fair housing in mind — limiting the distribution of information for a pocket listing could potentially mean only marketing a property to a select audience or demographic.

But the rule also came with stiff penalties and fines for those who didn't comply with the terms. And in the wake of the industry's highly publicized battle over commissions practices, the policy has come under renewed scrutiny. 

A policy that has 'drawn the ire' of the DOJ

Real estate consulting firm WAV Group is running a survey of industry professionals about the Clear Cooperation policy. In a blog post, WAV Group's Victor Lund argues that the policy "has drawn the ire of the United States Department of Justice" and that the industry is in a "fight or flight moment" regarding Clear Cooperation. 

"Many brokers, MLSs, and Association leaders believe that this policy creates untenable legal risk given the active investigation by the Department of Justice," Lund writes in the survey introduction. "The policy has been challenged in the courts with several lawsuits issued alleging that the policy hindered competition involving NAR, leading MLSs and Realtor Associations."

Those lawsuits include ongoing litigation with Top Agent Network, a private listing service, which a judge agreed to reconsider in July, as well as a suit brought by pocket listing site ThePLS.com, which was resolved (at least for now) in January. And the DOJ continues to investigate the Clear Cooperation policy in a case that may reach the Supreme Court.

A 'temperature check' for the industry

Lund tells Real Estate News that the survey is a "temperature check" that will be presented by a colleague at NAR's MLS Technology and Emerging Issues Advisory Board meeting this month. The aim is to not only understand where real estate professionals stand on this particular issue, but to provide comments and insight to influential NAR leaders and committee heads who deliberate over policy changes.

Lund said real estate professionals fall into three main buckets regarding the policy: those who support keeping it, those who seek modifications and those who want to remove it. Comments shared in the survey will be presented to NAR committee members anonymously, Lund noted. 

Is NAR involved?

"NAR is absolutely not involved," Lund responded when asked about any collaboration or input from the powerful trade association, though he concedes for full disclosure that several current and past clients are on the Emerging Issues Advisory Board. Since launching the survey on Friday, Lund said it has already received 500 responses. 

"NAR is actively listening to the perspectives and feedback of industry participants regarding the Clear Cooperation Policy," a NAR spokesman wrote to Real Estate News when asked about the organization's involvement with the effort. 

"NAR is open to this important ongoing dialogue with the ultimate goal of helping NAR members and consumers succeed."