Revise or remove Clear Cooperation, most industry pros say 

This week is expected to be a pivotal one regarding the future of NAR's Clear Cooperation Policy, a rule that requires agents to post listing details to the MLS within one business day of publicly marketing a home for sale. 

The policy, which is rooted in concerns over fair housing and transparency in real estate inventory, has been the center of ongoing litigation — both from industry actors and the Department of Justice — and an influential NAR committee is meeting this week to discuss the policy and hear input from agents and top industry leaders. 

Little support for leaving the policy as-is

Based on the results of a recent survey completed by 671 real estate professionals, consulting firm WAV Group found that only 28% of respondents believe the Clear Cooperation Policy should remain in place with no changes, while 29% prefer to modify it or make it optional, and 43% said it should be removed entirely.

Opinions on what path to take differed somewhat between brokerage and MLS respondents. Removing the policy altogether was preferred by 51% of brokerage respondents, while 40% of those in the MLS would prefer to rework it. Digging down further, there were also variances based on brokerage size. Larger brokerages — those with roughly 3,000 or more agents — were more in favor of ditching the policy; smaller brokerages were more interested in a less radical approach, WAV Group found.

Legal risk, enforceability among the top concerns

Brokerage respondents who favored removing the policy "were most concerned about getting named in another round of litigation," the survey found, but they also said Clear Cooperation can complicate their work with clients by interfering with their marketing efforts or causing a delay in signing a formal listing agreement until after the property is fully ready to list and show. 

That's because the policy "does not allow adequate time to make repairs, stage the home, order photos, virtual tours, or signs ahead of posting to the MLS," brokerage respondents noted.

Among MLS respondents who supported revising the policy, enforceability was a top concern. They indicated that Clear Cooperation is difficult to enforce, and they would prefer to see incentives for participation versus punishment for noncompliance. 

"MLSs would like to find ways to encourage brokers to submit their inventory rather than levying fines if they don't," WAV Group researchers wrote. "Both MLS and broker respondents stated that forced behaviors open the industry to further legal risk." 

Should NAR be in the policy business?

WAV Group managing partner Victor Lund told Real Estate News that the goal of the survey was to address the real concerns over legal risks and gauge how industry professionals feel about the policy, nearly five years after it was approved. 

"We needed to understand the landscape and the temperament of our industry in order to advise boards of directors most effectively around the issue and which way the wind is blowing," he explained. "So now we have that — it's not our opinion, it's a measured census."

Additionally, Lund suggested that the issues surrounding the Clear Cooperation Policy in the wake of the NAR settlement and industry practice changes, combined with ongoing DOJ investigations, should spark dialogue and debate about who should be creating policy in the first place. He believes that while NAR has been cautious to make big changes, many in the brokerage and MLS worlds are ready to move on litigation.

"This plays to a larger question in our industry about the role of the National Association of Realtors being a policymaker at all," he said. 

"I don't know how you could argue that any policymaking by the National Association of Realtors is not antitrust."