Clear Cooperation: ‘Imperative’ or legal risk? 

The debate over NAR's Clear Cooperation Policy is hitting a fever pitch with the association's MLS Technology and Emerging Issues Advisory Board meeting Thursday and Friday to hear different perspectives on the policy and possible alternatives.

Industry leaders, some of whom are set to present to the advisory board, have taken firm — and very different — public stands on the rule, which requires brokers to enter listing information in the MLS within one business day of publicly marketing a residential property. And a just-released survey found that a majority of people want to see the rule changed or dropped altogether.

The Clear Cooperation Policy, which was approved in November 2019 and adopted in May 2020, 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. It also emerged after MLS-type sites started to promote private listings, setting off newly revived legal disputes.

Real Estate News reached out to a handful of companies and experts to gauge where they stand on the issue. Some were reluctant to weigh in; others have publicly and forcefully proclaimed their points of view.

Zillow: Listing transparency 'imperative' 

In a statement provided to Real Estate News, Zillow's senior director of industry affairs, Matt Hendricks, spoke to the importance of sharing listing information with all home shoppers, saying that listing transparency is "imperative to an equitable market" while adding that listings in private networks "receive less exposure than those on the MLS, often resulting in lower sales prices for sellers."

"With restricted visibility, homebuyers and their agents cannot consider all available homes for sale," he said. "Additionally, outright removal of the Clear Cooperation Policy would encourage an uneven playing field, which stands to disadvantage buyers, sellers, and agents outside of exclusive organizations. The Clear Cooperation Policy, with a modification to remove the office exclusive loophole, is key to maintaining a transparent, consumer-friendly, pro-competitive real estate market."

eXp: Limiting data a 'travesty'

eXp Realty CEO Leo Pareja has also come out in support of the Clear Cooperation Policy, telling Real Estate News during a phone conversation that the MLS gives consumers and agents the most "liquid, accurate and complete data set" which is something that homebuyers and sellers in other countries don't have. It would be a "travesty," Peraja said, if this data set were to be compromised, and creating separate sets of inventory for select groups to access "creates a much worse experience and potentially fair housing violations."

"Removing Clear Cooperation would negatively impact consumers who would be forced into a 'pay-to-play' scenario," a company spokesperson said over email. "There are extreme circumstances for privacy of the seller, but they are a trade-off in privacy for lack of exposure to potential buyers. It is a listing agent's fiduciary duty to get the most interest from ready, willing and able buyers to procure an offer."

Compass: Clear Cooperation poses legal risk

"Full repeal of Clear Cooperation as a national, NAR-mandated rule is the simplest way to reduce legal and financial risk to the industry, and would enable local decision making in each market/MLS," a Compass spokesperson said to Real Estate News when asked about the company's formal position on the policy.

But Compass CEO Robert Reffkin, who has touted the company's own private listings network as a strategic competitive advantage when talking to investors, went further during an industry event last week.

"I think it's not 'clear cooperation.' I think it's forced cooperation," Reffkin said during a recent RISMedia event. "The thing I'd like to see is MLSs having people use them because they want to, not because they're forced to. And I think that is inevitable. We need to do that before lawyers make us do that."

1000WATT: Motivated by the bottom line

In a recent blog post, 1000WATT CEO Brian Boero said the DOJ is wrong to go after cooperation but also commented on why major industry players are taking different positions.

"A brokerage like Compass has concentrated market share in several key areas," he wrote. "Keeping more listings private will create more in-house deals for them. Other big brokerages, especially those that are virtual, like eXp, have broad market share — lots of agents spread relatively thinly. In-house networks aren't as powerful for them, and they are therefore more likely to support leaving CCP in place."

Meanwhile for portals like Zillow, "Fewer listings in the MLS = fewer dollars," Boero wrote, adding that the issue is most straightforward for MLSs, who "do not want yet another piece pulled from their Jenga tower." He argues for more debate on the policy, "without the bullshit," he wrote, from the "invisible hands of those who benefit from the shadowed chaos of a marketplace without a strong MLS coming into play."