Brokerages have 3 options after Clear Cooperation decision 

After months of deliberation, the National Association of Realtors finally announced last week that Clear Cooperation will survive, but agents and sellers will have "delayed marketing" flexibility via the new Multiple Listing Options for Sellers policy. 

The responsibility of ironing out the details will fall to local MLSs, according to Andrew Flachner, co-founder and CEO of RealScout, and Jack Miller, CEO of T3 Sixty. Flachner and Miller discussed the changes — and the scenarios that brokers should be preparing for — during a webinar last week. (Note: Real Estate News is an editorially independent division of T3 Sixty.)

"As a result of this announcement, there's going to be a lot of uncertainty out there," Flachner said. It could be argued that NAR's decision doesn't "address the DOJ's concerns, and there may be further action," he added. "So I don't want to speculate too much, but I don't know if this is the final chapter in the CCP debate."

While the industry awaits further clarity and MLSs work to implement policy changes by NAR's Sept. 30 deadline, Flachner and Miller said there are three likely scenarios brokerages will face. 

Scenario 1: The status quo

Some brokerages and agents will likely continue adding their listings to the MLS from the start, just as they've been doing since Clear Cooperation was adopted in 2020. But even with NAR's preservation of the CCP, a broker's ability to maintain the status quo depends on the policy being enforced at the local level — something individual MLSs will have to decide.

"If CCP remains intact, and the DOJ and litigation threats do not challenge this, it's more or less business as usual," Flachner explained. Moving forward in this way would be the cheapest and easiest path for the industry — and would provide the most neutral outcome for consumers, he said.

Scenario 2: Walled gardens 

If a local MLS decides it will no longer enforce the CCP, there is a greater chance that brokers will lean into "walled gardens" — or keep listings off the MLS and market them internally as office exclusives for some period of time before going public. This scenario would likely lead to further brokerage consolidation as smaller, independent players struggle to compete against larger firms that hoard inventory.

"When everybody cooperates, you have a system that works a certain way," Miller said. "But as soon as one person decides that they're going to play this game competitively — and then they start to use inventory in a competitive fashion, not a cooperative fashion — it puts everybody else at a disadvantage."

Scenario 3: Federated listings

But increased consolidation of listings in the hands of large brokerages isn't the only possibility if MLSs choose not to enforce Clear Cooperation. There's also a chance that, even in fragmented local or regional markets, some companies will form alliances. In this scenario, smaller players could decide to pool their listings to stay competitive — or some firms might choose to work with certain platforms over others.

This path forward would be messy, Flachner said, but better for consumers and smaller companies than the "walled garden" alternative. Regardless of which scenario plays out, "very few [brokerages] will have the option not to take action immediately" because the "early movers started months ago," Flachner said.

Miller offered a pragmatic perspective, suggesting that brokerage leaders need to pay close attention to what's happening locally. "It's not about good, bad, right, wrong; it's about what you need to do to be competitive in your market," he explained. 

Brokerages should be ready for all potential outcomes, he added, or prepare to be "beaten up" if they "have no counter move" to companies that have already started moving ahead with the second or third scenarios.