Local association pauses Clear Cooperation — will others follow? 

A proverbial line has been drawn in the sand in the intensifying debate over NAR's Clear Cooperation Policy — a rule that requires agents to add their listings to the MLS within one business day of publicly marketing a property. 

The latest move comes from a small local association in a wealthy area, but it could signal a seismic shift in the way the industry directs and enforces the controversial policy. 

Earlier this month, the head of the Park City Board of Realtors and MLS told member brokers it would no longer adhere to or enforce the Clear Cooperation Policy, Inman reported. The decision came after CEO Jamie Johnson sent a letter to NAR expressing concerns over possible litigation, informing the national association that her organization would not abide by the CCP while NAR was evaluating potential changes to the policy.

Park City Realtors declined to comment on the decision.

NAR's MLS Technology and Emerging Issues Advisory Board met last month to discuss Clear Cooperation and hear commentary from top industry players. Several real estate leaders have been vocal about their views, ranging from strong support for CCP, to a push for changes, to the outright elimination of the policy.

How Park City plays into the larger debate

Park City, like other ski resort towns, is a small city which skews toward the luxury market. According to the most recent quarterly report from Park City Realtors, the median sale price in the second quarter was $1.7 million — a figure that jumps to nearly $4 million when narrowing the focus to single-family homes. 

Those numbers suggest a marketplace of highly affluent buyers and sellers who may be more inclined to transact privately, off the MLS.

It comes as little surprise, then, that leaders in the luxury space have been among the policy's most vocal opponents. They include Compass CEO Robert Reffkin, whose brokerage established a luxury division in 2020, and Mauricio Umansky — reality TV star, CEO of luxury brokerage The Agency and co-founder of the upstart American Real Estate Association. 

Umansky and his trade association co-founder Jason Haber have been pushing agents to sign an online petition against the CCP — a move, Haber told Real Estate News, that represents "zero legal challenge" to NAR — but is intended to determine how many "were harmed by the Clear Cooperation Policy."

"We are simply responding to an influx of agents who have been aggrieved by the policy," Haber wrote over text message. "That includes agents who have been fined and faced financial consequences to agents that had damages to client relationships because of the conflict that the Clear Cooperation Policy created."

Further legal action could be imminent 

A petition might not represent a legal risk for NAR, but Umansky has recently vowed to refile a suit to take down the policy. Additionally, the private listing service Top Agent Network filed an amended complaint earlier this month in its legal action against NAR and the CCP, now focusing solely on the association. 

Compass' Reffkin also shared a lengthy op-ed this week detailing his qualms against the policy.

Haber, an agent with Compass in New York, clarified to Real Estate News that his trade group is not collaborating with Reffkin on the broader effort to defeat the CCP.

"The policy prescriptions that come out of our trade group are separate from the positions taken from Compass or any other company. When I speak of our agent feedback, I mean our community of agents at the trade group. All that being said, we do agree with his position."

Advocates are also digging in

Opponents to CCP aren't the only ones getting their message out there. A competing chorus of supporters have been making a very public case in favor of the policy. 

This week, Zillow President Susan Daimler reaffirmed the search giant's support of CCP, calling out "misguided" industry leaders who "have an invested interest in some of these private listing networks."

"It's pretty hard to be pro-PLN and pro-consumer," Daimler told Real Estate News.

Redfin CEO Glenn Kelman also joined the fray with his own opinion piece on the topic, as did NextHome CEO and podcaster James Dwiggins in a two-part series. But it's not just business leaders weighing in — legal experts are sharing their thoughts too.

"I think merely getting rid of CCP is not the solution," Brian Schneider, who provides legal counsel to Bright and dozens of other MLSs, told Real Estate News. "I think that there are some MLSs that have come up with better solutions that mitigate or avoid the antitrust argument entirely and also support the need to have a transparent market."

Bright MLS's approach to exclusive listings — allowing agents to keep those listings off public sites, but still requiring them to enter the properties in the MLS — may be an attempt to strike that balance.

NAR still considering all options

As industry leaders duke it out in public, NAR is keeping its conversations private for now. 

"NAR continues to listen to the perspectives and feedback of industry participants regarding the Clear Cooperation Policy," a spokesperson said to Real Estate News, noting that the MLS Technology and Emerging Issues Board will meet again to discuss the issue in late October.

And in the meantime?

As far as Park City is concerned, NAR said: "Our MLS policy process is designed to weigh the varied perspectives of our stakeholders and ensure an outcome that is in the best interest of our members and consumers."