"Coming Soon" For Listings Is Back - NAR's New Clear Cooperation Policy

Understanding the Core of Clear Cooperation (Still in Place)

The New Flexibility: Seller-Directed Exclusion

The significant change introduced by NAR is a new exception to the Clear Cooperation Policy. This exception allows sellers to direct their listing broker not to submit their listing to the MLS, even if it is being publicly marketed. This seller-directed exclusion must meet specific criteria:

• Seller's Explicit Instruction: The decision to exclude the listing from the MLS must be the explicit and informed instruction of the seller. This means the seller must understand the implications of not listing on the MLS, including potentially limited market exposure.

• Written Documentation: The seller's instruction to exclude the listing from the MLS must be documented in writing. This provides a clear record of the seller's decision and protects both the seller and the listing broker.

• No Public Marketing Until Exclusion is Documented: The listing broker cannot publicly market the property in any way until they have a signed written agreement from the seller directing them not to submit the listing to the MLS.

• Limited Public Marketing During Exclusion: Even with the exclusion in place, if the property is publicly marketed, the one-business-day submission rule to the MLS will be triggered unless the seller has provided the written directive before any public marketing occurred.

• Duration of Exclusion: The article doesn't specify a time limit for this exclusion. However, it's implied that as long as the seller wishes to keep the property off the MLS (and has provided written direction), it can remain excluded, even if publicly marketed.

How This Differs from the Previous Clear Cooperation Rules

Previously, the Clear Cooperation Policy had very limited exceptions. Once a property was publicly marketed, submission to the MLS within one business day was generally required. There wasn't a formal mechanism for a seller to direct the broker to publicly market a property without putting it on the MLS.

The new policy introduces a formal and documented pathway for sellers to choose not to have their property listed on the MLS, even if they want it to be publicly marketed through other channels (e.g., yard signs, direct mail, social media).

Key Differences Summarized

Implications of the New Policy

• More Seller Control: The new policy gives sellers more control over the initial marketing strategy of their property. They can explore off-MLS marketing options with their agent without immediately triggering the MLS submission requirement.

• Potential for Misunderstanding: It's crucial for agents to thoroughly explain the implications of not listing on the MLS to sellers, ensuring they understand the potential benefits and drawbacks (e.g., potentially smaller buyer pool). The written documentation requirement aims to mitigate this risk.

• Focus on Informed Consent: The emphasis on explicit and written seller direction underscores the importance of informed consent in real estate transactions.

• Maintaining the Spirit of Clear Cooperation: NAR emphasizes that this change is intended to provide flexibility while still upholding the core principles of broad cooperation and market transparency facilitated by the MLS. The one-business-day rule still applies if a property is publicly marketed before the written exclusion is in place.

YES, it is "Legal" and it is "Ethical". 

In conclusion, the new policy introduces a significant change by allowing sellers to direct their brokers to exclude a property from the MLS, even if it is publicly marketed, provided this instruction is explicit, documented in writing, and obtained before any public marketing commences. This provides greater flexibility for sellers while still maintaining the fundamental principles of the Clear Cooperation Policy for properties that are intended for broad market exposure through the MLS.