At the National Association of REALTORS® (“NAR”) Annual Governance Meetings in November, the NAR Board of Directors passed a new “Clear Cooperation Policy.” The policy states that if a property is publicly marketed (via websites, a yard sign, social media, email blasts, etc.), a listing for that property must be added to the MLS within one (1) business day of the first public marketing of that property. Failure to do so will result in a $500 fine with UtahRealEstate.com.
You don’t need my opinions regarding the new policy, you only need solutions on how to be compliant. So let’s discuss how you will want to proceed.
New Listings
The current rules require a home to be advertised on the MLS within 5 business days of signing. That rule is not changing, however, if you are going to do any advertising before the listing is on the MLS then the rule is changing. Previously you could put up a yard sign or a coming soon post on the MLS days before being on the MLS. That is not the case any longer. You will want to make sure the listing is on the MLS before any advertising!
Best Option to Proceed
Within 24 hours of an executed Exclusive Right to Sell Agency Agreement signed, put the property on the MLS and immediately change the status to “Off Market.” The days on market (DOM) will not accumulate in this status and if you make the change immediately it shouldn’t hit any hotsheets. In my opinion, this should be done before any photographs are taken and you could initially only use the required fields per the MLS. By posting it in the “Off Market” status you are now allowed to proceed as normal (stage the home, get professional photographs, announce the listing is coming soon on your social media, etc. When you are ready to allow showings, you will want to make sure the MLS listing is complete and that the photos are added and then change the status to “Active.”
QUESTIONS
If I write an offer on an “Off Market” listing that is accepted, will a commission be paid?
Yes. It’s on the MLS.
Do I need my clients permission to have the status as “Off Market” and when I put it to “Active?”
I think putting your plan in an addendum to the Exclusive Right to Sell agreement is the best way to proceed. Something like “Seller understands that the property will be in an ‘Off Market’ status on the MLS until the Seller notifies the Agent through an email or text that they are ready for showings.”
What do we do with the MLS Listing Exclusion Form
This form may still be used if it truly is an exclusive listing that won’t be advertised. If you are using this form to get the home photographed and staged then you will no longer need this form. The MLS redid this form and I imagine it will seldom be used moving forward. If you plan to go this route, please use the new form.
If I represent a builder do I need to have every property on the MLS?
It gets a little trick in these situations and I imagine we will get more direction in the coming months. Currently, any homes that are currently marketed for sale, meaning you have the base purchase price, or a spec home, then those need to be on the MLS. You can put a for sale in each lot even before it’s being marketed and then put those homes on the MLS when there is a property ready to market and receive offers.
Can I leave a property as “Off Market” indefinitely?
That is not the intent of this new law. It’s definitely a grey area that I’d recommend avoiding. If the Seller is considering offers outside of the brokerage then it’s status should be changed to “Active.”
Do I have to have photos on the MLS for “Off Market Listings”
No