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NAR's New Office Exclusive Guidance: Every REALTOR® Needs to Read This · Dishin' Dirt with Gary Pickren

0:00
SPEAKER_00: If you have listened to Dish and Dirt for any length of time, you know that I have spent a lot of time, a lot of episodes, discussing office exclusive listings, private listing networks, clear cooperation rules of the National Association of Realtors, and the battle over who controls real estate listings and thus all the data created from those listings.
0:19
SPEAKER_00: We've talked about COMPASS, talked about Zillow, talked about homes.com, we've talked about brokerages building these private listing networks and how everything now seems to be moving in the way of three distinct portals.
0:30
SPEAKER_00: We've talked about how the Department of Injustice may be investigating that to see if this is an antitrust issue for small brokerages.
0:38
SPEAKER_00: Is this a fair housing issue?
0:39
SPEAKER_00: Could it be?
0:40
SPEAKER_00: We've also talked about the National Association of Realtors.
0:43
SPEAKER_00: What is their opinion?
0:44
SPEAKER_00: What will they say about this?
0:45
SPEAKER_00: And through all of these conversations, one question continues to come up, and that is what exactly are the listing brokers' duties when the seller wants to keep the property off the multiple listing service?
0:55
SPEAKER_00: Well, I think we finally have one of the best answers that I've seen because recently the National Association of Realtors has released a guidance document that is titled Office Exclusive Listingslash Pre-Marketing Guidance.
1:07
SPEAKER_00: Now, why it does not create new rules, it does explain how NAR believes that realtors should approach office exclusives and pre-marketing while still fulfilling their fiduciary duties that they owe to the sellers.
1:18
SPEAKER_00: Now, this is how they look at it based on NAR rules, not state law, not MLS rules.
1:23
SPEAKER_00: I want to be very clear about a couple things before we begin.
1:26
SPEAKER_00: This is not a new rule change for NAR.
1:28
SPEAKER_00: They are not abandoning office exclusives.
1:30
SPEAKER_00: They have not eliminated clear cooperation.
1:33
SPEAKER_00: In fact, NAR has not even picked sides in the compass versus Zillow debate and who controls the data.
1:39
SPEAKER_00: Moreover, NAR rules do not override state law, they don't override federal law or your MLS rules.
1:45
SPEAKER_00: And you also have to keep in mind that not all real estate agents are realtors.
1:49
SPEAKER_00: In fact, about 40% of all real estate licensees are not realtors.
1:53
SPEAKER_00: But what this does give us is a really good look at how a court of law would probably judge your actions in office exclusives and coming soons, because we know that courts like to look at NAR rules, NAR guidance, NAR code of ethics when they try to determine what a reasonable real estate agent should do and how they should act.
2:13
SPEAKER_00: If you read this document carefully, I think you're going to find something slightly different than you were expecting.
2:17
SPEAKER_00: NAR actually reaffirms that office exclusives remain a legitimate option for sellers.
2:25
SPEAKER_00: But, and it's a very big but, it also reminds brokers that the decision belongs solely to the seller, not to the broker, not to the broker's owner, not to the broker in charge, not to your marketing plan or your business development plan.
2:41
SPEAKER_00: It belongs solely to the seller.
2:43
SPEAKER_00: And the broker's job is to provide enough information for that seller to make an informed decision so that the seller can give informed consent.
2:52
SPEAKER_00: It's not pitching your marketing plan as the greatest idea and not explaining any of the fallbacks.
2:59
SPEAKER_00: And I think that's why this document is so important, because over the past year, our industry has spent a lot of time arguing about whether office exclusives are good or bad.
3:08
SPEAKER_00: I think they're really bad, except in very, very narrow situations, such as a celebrity or somebody's a victim of criminal domestic violence, or maybe they work for ICE or something of that nature.
3:18
SPEAKER_00: But I think maybe that is the wrong question because office exclusives are a marketing tool.
3:23
SPEAKER_00: And like any tool, they can be used appropriately.
3:26
SPEAKER_00: Somebody doesn't want their house on the market because they're a federal judge that has perhaps threats against them.
3:32
SPEAKER_00: But it also can be used inappropriately when it becomes your marketing strategy for you to get both sides of the transaction.
3:38
SPEAKER_00: The real question has never been about whether office exclusives should exist.
3:42
SPEAKER_00: The real question is: is an office exclusive actually in the seller's best interest?
3:47
SPEAKER_00: And that's what we're going to examine today on this week's episode as we walk through the NAR guidance document.
3:53
SPEAKER_01: This is Dish and Dirt with Gary Pickering, South Carolina's only podcast dedicated to the real estate agent craft.
4:00
SPEAKER_01: And now the host of Dish and Dirt, Gary Pickering.
4:16
SPEAKER_00: So when is an office exclusive actually in the seller's best interest?
4:20
SPEAKER_00: That is actually a fiduciary duty question.
4:23
SPEAKER_00: It's not a brokerage question, technology question.
4:25
SPEAKER_00: It's not a marketing or business development question, as a lot of these brokerages have tried to make it into.
4:30
SPEAKER_00: It is actually a fiduciary question, a question that you have under the wall.
4:34
SPEAKER_00: What is in the best interest of your seller, not what is in the best interest of you, your brokerage, or your financial bottom line.
4:41
SPEAKER_00: The real estate commission recently issued a guidance letter on coming soon.
4:45
SPEAKER_00: If you watched last month's Real Estate Commission meeting, you saw that we have formed a task force to issue guidance on office exclusives and off MLS listings.
4:55
SPEAKER_00: I have had the opportunity to help draft that guidance, and I'm working with that and several other people, as well as advice counsel on the commission to get something out to the public.
5:04
SPEAKER_00: Our focus is the same fundamentally as what you see in today's discussion of the NAR guidance letter.
5:10
SPEAKER_00: It's going to all be about informed consent, fiduci duties, and putting the client's interests first, putting their interests above your financial needs, your broker in charge's financial need, or the owner of your company's financial need.
5:24
SPEAKER_00: Now, when I read NAR's new guidance, I was struck by how closely aligned it is with the philosophy that I think you will see in the guidance letter from the Real Estate Commission.
5:33
SPEAKER_00: Both are probably going to begin in the same premise, which is that the seller does, in fact, have choices.
5:37
SPEAKER_00: Nobody is saying they don't.
5:39
SPEAKER_00: But at the same time, the broker has duties.
5:42
SPEAKER_00: And those duties don't begin with simply filling out forms or complying with an MLS rules.
5:47
SPEAKER_00: Those begin with advising the client.
5:50
SPEAKER_00: That is probably the most fundamental duty that a real estate licensee has to a client.
5:55
SPEAKER_00: It's advising, canceling, and advocating for that client.
5:59
SPEAKER_00: That is what separates client service from customer service.
6:02
SPEAKER_00: Helping the client understand every available option to them and explaining both the advantages and the disadvantages of each marketing strategy.
6:11
SPEAKER_00: And then allowing the seller, not the broker, to make that decision.
6:16
SPEAKER_00: When you make decisions for your client is when you get sued.
6:19
SPEAKER_00: One thing I also appreciate about this guidance letter is that NAR doesn't simply talk about compliance.
6:25
SPEAKER_00: It spends an entire section explaining why the MLS exists in the first place.
6:30
SPEAKER_00: And I think that's very important because sometimes in all of these debates over the private listings and office exclusives, we forget why cooperative MLS systems were created in the first place.
6:39
SPEAKER_00: They were created to increase transparency, to expand competition, to expose listings to the broadest possible market, to promote cooperation amongst brokers, and ultimately to benefit the consumer.
6:54
SPEAKER_00: Now that doesn't mean that every single listing has to go immediately or should go immediately in the MLS.
6:59
SPEAKER_00: There are exceptions to when it should have to go in the MLS.
7:02
SPEAKER_00: I recognize those exceptions.
7:04
SPEAKER_00: I will argue those exceptions are very few and very narrow.
7:07
SPEAKER_00: Every seller deserves to understand what they may be giving up if they choose a different path than the broadest exposure in the MLS.
7:15
SPEAKER_00: And that's what today's episode is all about.
7:17
SPEAKER_00: We're going to walk through NAR's guidance almost page by page, and we're going to discuss what it says.
7:22
SPEAKER_00: But we're also going to discuss what it doesn't say and how it compares to what I believe South Carolina's guidance will be on this.
7:27
SPEAKER_00: Because regardless of where you stand on office exclusives, I think everyone can agree on one principle.
7:33
SPEAKER_00: A seller can only make the right decision if they've been given the right information.
7:37
SPEAKER_00: And that's where your fiduciary duty begins.
7:40
SPEAKER_00: So let's dive into what I believe is one of the most important guidance documents that NAR has released in many, many years.
7:46
SPEAKER_00: If you would have asked me five years ago what would become the biggest issue facing residential real estate in 2026, I don't think anyone in their right mind would have predicted that we would be arguing over whether a home should be listed in the MLS or not.
8:00
SPEAKER_00: I don't think that was on anybody's bingo card.
8:03
SPEAKER_00: But here we are.
8:04
SPEAKER_00: And that debate has exploded over the past two years, mainly because of Robert Refkin.
8:08
SPEAKER_00: And to understand why, we need to understand what has changed.
8:11
SPEAKER_00: Historically, the MLS has been the foundation of residential real estate in America.
8:17
SPEAKER_00: Think about what the MLS really is.
8:19
SPEAKER_00: It's not Zillow, it's not Realtor.com, it's not homes.com.
8:23
SPEAKER_00: Those are all advertising platforms and lead generation platforms.
8:27
SPEAKER_00: The MLS is a cooperative marketplace.
8:30
SPEAKER_00: This purpose has always been straightforward.
8:32
SPEAKER_00: One broker will list a property, thousands and thousands of cooperating brokers can see it and show it, and thousands of buyers can gain access so they can decide if that's the house that meets their needs.
8:42
SPEAKER_00: The seller benefits because they get maximum exposure.
8:45
SPEAKER_00: When you're trying to sell something, you need as many people to know about it as possible.
8:49
SPEAKER_00: The buyer also benefits because they have maximum inventory to go look at.
8:53
SPEAKER_00: So it helps both the buyers and the seller.
8:55
SPEAKER_00: Competition increases, prices become more efficient.
8:59
SPEAKER_00: Fair housing goals are also advanced because everyone has access to the exact same inventory under the exact same rules at the exact same time.
9:07
SPEAKER_00: There's no secret system where I get access and you don't, where I can pay to get better access than you.
9:13
SPEAKER_00: Everybody gets it at the same time.
9:14
SPEAKER_00: The cooperative system is one of the reasons that the American housing market has functioned as efficiently as it has for decades.
9:20
SPEAKER_00: But over the last several decades, this model's become under a lot of pressure.
9:25
SPEAKER_00: And what's happened is large brokers have begun to ask this question.
9:28
SPEAKER_00: Why should we immediately put all of our listings on the MLS so everybody can see them?
9:33
SPEAKER_00: Instead of putting them out there, why don't we try to shop them in-house first?
9:37
SPEAKER_00: Why don't we try to get both sides of the transaction?
9:39
SPEAKER_00: And that is the financial argument, the selfish argument that the real estate brokerages are making and not asking, is this in the best interest of the client?
9:47
SPEAKER_00: It sounds appealing.
9:48
SPEAKER_00: We're going to give the sellers more choice.
9:56
SPEAKER_00: A legitimate situation where privacy might actually outweigh the benefits of broad public exposure.
10:02
SPEAKER_00: But what can you see there?
10:03
SPEAKER_00: That's very narrow.
10:04
SPEAKER_00: That is not your everyday seller.
10:06
SPEAKER_00: Those are exceptions, not the rule.
10:08
SPEAKER_00: In fact, NAR expressly recognizes that office exclusives exist for exactly those kinds of special and unique circumstances.
10:17
SPEAKER_00: It explains that the decision, however, belongs entirely to the seller.
10:22
SPEAKER_00: And even while it identifies help safety and privacy and other situations with those interests, they recognize that sometimes they can outweigh the broad market exposure as an appropriate reason to choose that option.
10:33
SPEAKER_00: But from the beginning, they're very clear that there are very narrow situations and certain things must then happen between the client and the agent.
10:44
SPEAKER_00: The real question here isn't whether office exclusives are good or bad.
10:47
SPEAKER_00: The real question is who's making the decision, why, and with what information.
10:51
SPEAKER_00: And that's where this debate, in my opinion, becomes much more complicated because today, office exclusives aren't just about privacy or protecting the seller.
11:00
SPEAKER_00: They become a business strategy used by Compass and Robert Refkin and many others.
11:04
SPEAKER_00: Brokerages are competing for market share, they're competing for agents, they're competing for buyers, and they increasingly are now competing for that data.
11:11
SPEAKER_00: Inventory is that currency.
11:13
SPEAKER_00: If you control the listings, you control consumer attention.
11:16
SPEAKER_00: If consumers have to come to your brokerage or your brokerage website to see these homes, they can't find anywhere else, you get the competitive advantage.
11:23
SPEAKER_00: And that's why these companies like Compass have heavily invested in this private exclusiveness phase marketing strategy.
11:28
SPEAKER_00: This is a debate about the future structure of how real estate is going to function moving forward.
11:33
SPEAKER_00: Will listings continue to be broadly shared through a cooperative MLS system?
11:37
SPEAKER_00: Or are we going to get to a point where inventory becomes increasingly fragmented amongst competing brokerages and platforms?
11:43
SPEAKER_00: And you won't be able to see an EXP or a Keller Williams or a anywhere brand listing unless you work for those brands.
11:50
SPEAKER_00: And that's why this conversation is becoming so heated.
11:53
SPEAKER_00: And that's exactly why I think NAR felt compelled to issue this new guidance.
11:57
SPEAKER_00: Not to eliminate office exclusives, but to remind realtors where their fiduciary begins and where it ends.
12:03
SPEAKER_00: And so now what we're going to do is I'm going to walk you through the guidance line by line because I think it answers many of the questions that a lot of agents have had over the past year.
12:11
SPEAKER_00: Now that we've talked about why office exclusives have become such a hot button, let's look at what the National Association of Realtors actually said.
12:17
SPEAKER_00: I want to emphasize something right from the beginning.
12:20
SPEAKER_00: The document is guidance.
12:21
SPEAKER_00: It doesn't create new rules, it doesn't amend the code of ethics, it doesn't replace clear cooperation.
12:26
SPEAKER_00: Instead, it explains what NAR believes that realtors should do to fulfill their existing fiduciary duties when discussing office exclusives and pre-marketing strategies with sellers.
12:36
SPEAKER_00: Frankly, I think every broker should be reading this document, whether you're a realtor or not, because whether you agree with office exclusives or oppose them, the guidance shifts the conversation away from brokerage strategy and back to fiduciary duty, which is your entire statute is based on your fiduci duty to your client.
12:55
SPEAKER_00: So let's walk through it together.
12:56
SPEAKER_00: The very first thing that NAR does is it quotes Article I of the Realtor Code of Ethics.
13:01
SPEAKER_00: And that's not an accident that they start there.
13:03
SPEAKER_00: Realtors pledge to protect and promote the interest of their client.
13:07
SPEAKER_00: All real estate licensees must protect and promote the interest of their clients.
13:11
SPEAKER_00: That's also law.
13:13
SPEAKER_00: Notice what NAR didn't begin with.
13:15
SPEAKER_00: It didn't begin with clear cooperation, it didn't begin with MLS rules, it didn't begin with office exclusives, it didn't begin with your fiduciary duty.
13:22
SPEAKER_00: That tells us everything you need to know about the purpose of this document.
13:26
SPEAKER_00: NAR is reminding realtors that before you ever start talking about marketing strategies, we first have to ask one question.
13:34
SPEAKER_00: What serves the client's interest?
13:37
SPEAKER_00: And I think that was very intentional of NAR because over the last year, the debate has become almost entirely about brokerage business models.
13:45
SPEAKER_00: The document basically says, let's get back to the first principles.
13:48
SPEAKER_00: And the first principle begins with the client.
13:52
SPEAKER_00: The next thing NAR does is something I think many people have overlooked.
13:55
SPEAKER_00: It reaffirms that office exclusives do remain a legitimate listing option.
14:00
SPEAKER_00: This wasn't NAR trying to eliminate office exclusives.
14:04
SPEAKER_00: Quite the opposite, it acknowledges that office exclusives do serve legitimate purposes in narrow situations.
14:11
SPEAKER_00: It explains that they are intended for situations where the seller wants to sell a property without public marketing.
14:17
SPEAKER_00: A listing is filed with MLS and can be shared within the listing firms depending on the listing agreement.
14:22
SPEAKER_00: It cannot be publicly marketed or disseminated to other MLS participants.
14:26
SPEAKER_00: Then NAR gives you some examples: health, safety, and privacy.
14:30
SPEAKER_00: Situations where those interests might outweigh the benefits of broad exposure.
14:34
SPEAKER_00: We've talked about those ad nonzium.
14:36
SPEAKER_00: Those examples are important because they demonstrate that office exclusives are intended to solve seller problems.
14:42
SPEAKER_00: And that's very important, not to solve brokerage problems.
14:46
SPEAKER_00: And I want you to notice that wording.
14:48
SPEAKER_00: NAR doesn't say when it benefits your company.
14:52
SPEAKER_00: It says when it benefits your seller.
14:54
SPEAKER_00: Unfortunately, a lot of brokerages today are using the private exclusives because it benefits the brokerage.
15:01
SPEAKER_00: And when you try to say it does not, you're full of shit.
15:04
SPEAKER_00: I get a lot of emails from people all across the country telling me, oh, this is good for the seller.
15:09
SPEAKER_00: No, it's good for your brokerage that you're getting both sides.
15:12
SPEAKER_00: In narrow situations, it's good for your seller.
15:15
SPEAKER_00: But when 50% of all of your listings are now in-house, that is your decision.
15:19
SPEAKER_00: That's not the seller's decision.
15:21
SPEAKER_00: That's a huge distinction.
15:23
SPEAKER_00: This may be also one of my favorite sections in the guidance is that NAR says decisions belong solely to the seller.
15:30
SPEAKER_00: They use word entirely to the seller.
15:32
SPEAKER_00: It says it belongs entirely to the seller, not the broker, not the office policy, not the franchise, not the brokerage, not the Robert Refkin, but the seller.
15:41
SPEAKER_00: Now that sounds obvious to any real estate agent who actually has a brain, but in practice, that's incredibly significant because over the past year we have seen brokerages heavily promoting private listing strategies.
15:52
SPEAKER_00: In fact, Robert Refkin has bragged that over 50% of all new listings are going to be office exclusives.
15:58
SPEAKER_00: No way in hell is 50% of the sellers deciding that limiting exposure, telling less people about their house is in their best interest.
16:08
SPEAKER_00: This is purely agent coerced.
16:11
SPEAKER_00: There's no ifs, ands, or buts about it.
16:13
SPEAKER_00: Now, there's nothing inherently wrong with promoting an option.
16:16
SPEAKER_00: I'm not saying that.
16:17
SPEAKER_00: But if the option begins to look like a company policy, 50% certainly looks like a company policy, instead of an informed seller decision, then I think we got a problem.
16:26
SPEAKER_00: And I think that problem is going to be a statutory problem as well as a realtor problem.
16:30
SPEAKER_00: Because frankly, I think they will get sued if they continue down this in a class action.
16:34
SPEAKER_00: Because when these sellers start talking to each other and start talking to the next catch mark, is when you start getting the next lawsuit.
16:40
SPEAKER_00: When they realize they could have made more money by not doing the office exclusive, that is when you're going to have the problem.
16:46
SPEAKER_00: Remember, the whole clear cooperation policy in the first place came out of a lawsuit in California because it's the exact same thing.
16:53
SPEAKER_00: A group of real estate agents realized they could sell the property internally because the neighborhood was hot and they had a lot of buyers in their company, and they shot those listings only in their company and did not put them on the multiple listings.
17:05
SPEAKER_00: These people who live in the same communities become friends and they start talking.
17:08
SPEAKER_00: And when they start comparing prices from the people who did it in-house versus the people who went on the MLS, they start realizing they lost thousands and thousands of dollars on the table, and then they file the lawsuit.
17:18
SPEAKER_00: And that's what happened, and that's why we have clear cooperation today.
17:21
SPEAKER_00: The guidance specifically says that sellers should choose the option because it aligns with their best interest, and the agent has a duty to advise the seller about the MLS benefits that they are waiving and delaying.
17:32
SPEAKER_00: That's called informed decision making.
17:35
SPEAKER_00: Not informed after the fact, before the decision.
17:38
SPEAKER_00: And one thing I appreciate about this guidance is it doesn't separate office exclusives from pre-marketing?
17:43
SPEAKER_00: Because those are not the same thing.
17:44
SPEAKER_00: An office exclusive generally means the property is not going to be marketed publicly.
17:48
SPEAKER_00: Pre-marketing, on the other hand, means coming soon listings or delayed marketing programs that exist under some, but not all, of the local MLS rules, and certainly not under all state rules.
17:58
SPEAKER_00: South Carolina, one that I would argue makes coming soons very difficult.
18:02
SPEAKER_00: NAR recognizes that these programs can provide additional flexibility, but they also must comply with local rules for MLS's, state laws, and they have to follow the seller's informed instructions.
18:13
SPEAKER_00: It even gives an example such as coming soon statuses and delayed market exemption listings.
18:18
SPEAKER_00: You really should read this guidance letter.
18:19
SPEAKER_00: It's very good.
18:20
SPEAKER_00: But why does all this matter?
18:21
SPEAKER_00: Because sometimes I hear agents using these terms interchangeably.
18:24
SPEAKER_00: They are not interchangeable.
18:25
SPEAKER_00: An office exclusive is one thing, coming soon listing is quite different.
18:29
SPEAKER_00: It's another thing.
18:30
SPEAKER_00: A delayed marketing status is another.
18:32
SPEAKER_00: Each has different rules, different disclosure requirements, different MLS obligations, different state law applications, and you need to understand those differences is going to be part of becoming a competent listing broker.
18:42
SPEAKER_00: Now, I see a big problem with coming soon because you may not market property for sale without having a signed listing agreement.
18:51
SPEAKER_00: Coming soon is advertising.
18:53
SPEAKER_00: If you are saying that a property is coming soon, as the guidance letter in South Carolina said, you must have a listing agreement signed before you can market properties coming soon.
19:02
SPEAKER_00: Secondly, under our statute, you must present all offers.
19:05
SPEAKER_00: So if I present an offer, you can't tell me the house is coming soon.
19:08
SPEAKER_00: I'm not accepting your offer.
19:09
SPEAKER_00: You must present that offer.
19:10
SPEAKER_00: So the problem is not coming soon, it's already gotten there.
19:13
SPEAKER_00: And secondly, I'm hearing of people denying other agents rights to see the house.
19:19
SPEAKER_00: They will list the house and they will show it to all of their agents who work at their brand or even their clients, but they won't show it to somebody else.
19:27
SPEAKER_00: Now, I think that's a special level of stupidity.
19:30
SPEAKER_00: Because wait till that seller finds out that there was a buyer represented by another company that you denied seeing this house.
19:38
SPEAKER_00: And wait till that seller finds out that that buyer bought a house in their neighborhood and paid more money than you got for them.
19:46
SPEAKER_00: That is a lawsuit waiting to happen.
19:48
SPEAKER_00: Now we arrive at what I think is really the heart of this document.
19:50
SPEAKER_00: NAR outlines the broker's responsibilities.
19:53
SPEAKER_00: And notice what the responsibility is that comes first.
19:56
SPEAKER_00: It's not obtaining a signature, it's not entering data into the MLS, it's not about filling out paperwork, it's explaining all listing options to the seller, not just office exclusives, not just the MLS, all of them.
20:08
SPEAKER_00: And not merely explaining that they exist.
20:10
SPEAKER_00: The broker should explain how each option aligns with what the seller's stated goals are, their marketing strategy, and this is the key phrase, how each option serves the best interest of the seller.
20:22
SPEAKER_00: It's a much higher standard than saying here's the form signed.
20:25
SPEAKER_00: It's a counseling obligation.
20:27
SPEAKER_00: You have a duty to counsel your client or to advise them, to educate them, to help them make the decision.
20:34
SPEAKER_00: That's what professionals do.
20:35
SPEAKER_00: But the decision is ultimately the seller's.
20:38
SPEAKER_00: The second major responsibility, according to the guidance letter, is obtaining a seller's disclosure.
20:43
SPEAKER_00: Again, don't think this is just another form.
20:46
SPEAKER_00: The disclosure serves as an important legal purpose.
20:49
SPEAKER_00: It documents that the seller fully understands that other options are available, and it documents that they fully understand the MLS benefits that they are going to give up and delay.
20:59
SPEAKER_00: And it confirms that this was solely their decision.
21:01
SPEAKER_00: And that's going to be very important if you get sued.
21:04
SPEAKER_00: The South Carolina guidance letter that we're working on, I believe, will emphasize informed consent.
21:09
SPEAKER_00: It will discuss brokers' fiduciary duties, fair housing concerns, and encourage documentation.
21:13
SPEAKER_00: And it's probably also going to recommend explaining the advantages and disadvantages of limited marketing.
21:18
SPEAKER_00: In other words, in my opinion, South Carolina and the National Association of Realtors are singing from the same sheet of music here.
21:24
SPEAKER_00: And in my opinion, they're both saying the same thing.
21:27
SPEAKER_00: The seller can absolutely choose limited marketing.
21:30
SPEAKER_00: It is a seller choice, but they must understand what they are choosing and what they're giving up.
21:35
SPEAKER_00: Now, NAR even lists the required disclosures.
21:39
SPEAKER_00: The seller should understand the relationship between the broker and the seller, the multiple listing service benefits that are being waived and delayed.
21:46
SPEAKER_00: They must confirm that the seller has chosen not to have property publicly marketed and has elected delayed marketing.
21:53
SPEAKER_00: And again, the recurring theme here is choice, disclosure, and transparency.
22:00
SPEAKER_00: Three words appear throughout the guidance.
22:02
SPEAKER_00: Rightfully so.
22:03
SPEAKER_00: It's about choice, it's about disclosure, it's about transparency.
22:06
SPEAKER_00: The next section addresses compliance.
22:08
SPEAKER_00: And frankly, there aren't many surprises here.
22:10
SPEAKER_00: If an office exclusive becomes publicly marketed, the listing must be then submitted to the MLS within one business aid.
22:16
SPEAKER_00: That is consistent with the clear cooperation policy.
22:18
SPEAKER_00: That's existing policy.
22:19
SPEAKER_00: And finally, let's talk about page four.
22:21
SPEAKER_00: In my opinion, it's probably the most revealing page of the entire guidance.
22:25
SPEAKER_00: NAR spends almost an entire page explaining why the MLS matters.
22:28
SPEAKER_00: Why don't you think about that?
22:29
SPEAKER_00: It did not have to do that.
22:30
SPEAKER_00: It could have ended after two pages.
22:32
SPEAKER_00: Instead, NAR closes by making the case that the MLS is a pro-competitive, pro-consumer system.
22:38
SPEAKER_00: And it says that the MLS provides broader market exposure, accurate and comprehensive property information, transparency, professional cooperation, fair housing support, transactional data, tools that improve informed decision making.
22:51
SPEAKER_00: And that tells me this document isn't really about office exclusives.
22:55
SPEAKER_00: It's about reaffirming the value of cooperation.
22:58
SPEAKER_00: NAR is basically saying, yes, sellers do have choices.
23:01
SPEAKER_00: And yes, office exclusives do remain available, but let's not lose sight of why the MLS exists.
23:07
SPEAKER_00: It exists to create transparency, to create competition, to create cooperation, and to get informed consumer consent and choice.
23:15
SPEAKER_00: And if there's one takeaway that I hope every listener leaves from this, it's this the debate shouldn't be framed as MLS versus office exclusives.
23:24
SPEAKER_00: The debate should be framed as how do we best fulfill our fiduciary duty for seller client?
23:31
SPEAKER_00: And when you start there, the answer becomes very clear.
23:33
SPEAKER_00: The seller should make the decision.
23:35
SPEAKER_00: The broker should provide the information.
23:38
SPEAKER_00: And the process should be transparent from beginning to end.
23:42
SPEAKER_00: Now that I've talked about and walked through the NAR guidance, I did want to discuss a recent article that I just saw today that was published in Emin News.
23:49
SPEAKER_00: And it was titled The One Question That Ends the Debate on Private Listings.
23:54
SPEAKER_00: I love this premise because sometimes we overcomplicate these issues.
23:57
SPEAKER_00: When we start talking about clear cooperation, MLS policy, antitrust, the portal wars, and all that crap, everybody just gets glazed over.
24:04
SPEAKER_00: But sometimes the best legal analysis can come from one asking a very simple question.
24:09
SPEAKER_00: Remember, if the glove doesn't fit, you gotta quit.
24:11
SPEAKER_00: And here's the question: which marketing strategy is most likely to accomplish the seller's objective?
24:18
SPEAKER_00: That's it.
24:19
SPEAKER_00: And notice what isn't in that question.
24:20
SPEAKER_00: It's not what benefits the brokerage.
24:23
SPEAKER_00: It doesn't ask what helps recruit agents.
24:25
SPEAKER_00: It doesn't ask what gives a portal a competitive advantage.
24:27
SPEAKER_00: It doesn't ask what helps your office hit its listing goals this month.
24:31
SPEAKER_00: It asks one thing: what is best for the seller?
24:35
SPEAKER_00: And that is exactly what your fiduciary duty requires.
24:37
SPEAKER_00: As attorney, we deal with fiduciary duties every single day.
24:40
SPEAKER_00: Trustees owe fiduciary duties, executors or personal representatives owe fiduciary duties, corporate directors owe fiduciary duties, real estate brokers, guys, you owe a fiduary duty to your client.
24:50
SPEAKER_00: A fiduciary duty doesn't ask what works best for me, it asks what works best for my client.
24:56
SPEAKER_00: Now let's apply that to office exclusives.
24:58
SPEAKER_00: Two identical homes, same subdivision, same price, same condition.
25:02
SPEAKER_00: One is immediately exposed to every buyer through the MLS, the other is marketed only within one brokerage for two weeks.
25:08
SPEAKER_00: Which one do you honestly believe is going to receive the greatest exposure?
25:12
SPEAKER_00: Well, the answer is obviously the MLS listing, right?
25:15
SPEAKER_00: Now, which one is most likely to generate more showings?
25:18
SPEAKER_00: Again, probably the MLS listing, not your office listing.
25:21
SPEAKER_00: Which one is most likely to create multiple offers?
25:25
SPEAKER_00: I don't know how you can argue against this.
25:27
SPEAKER_00: If you're honest with yourself, you know it's going to be the one that's listed on the MLS.
25:31
SPEAKER_00: And notice what I said, probably not always, because that's important.
25:33
SPEAKER_00: That's not always.
25:34
SPEAKER_00: See, the problem here occurs when we assume that every seller should be placed into one marketing strategy simply because that's how a broker prefers to operate.
25:43
SPEAKER_00: That flips the fiduciary duty question upside down.
25:45
SPEAKER_00: The broker should not begin with the marketing plan.
25:48
SPEAKER_00: The broker should begin with the client's objectives, then recommend the marketing strategy.
25:53
SPEAKER_00: And that is what NAR is saying.
25:55
SPEAKER_00: The guidance requires brokers to explain all listing options, discuss how each aligns with the seller's stated goals and their marketing strategy, and how each serves the seller's best interest before the seller makes an informed decision.
26:10
SPEAKER_00: That, my friends, is informed consent and compliance with state law and compliance with your duty as a realtor.
26:16
SPEAKER_00: Too many people have framed this as office exclusives are good or office exclusives are bad.
26:21
SPEAKER_00: I'm probably guilty of that.
26:22
SPEAKER_00: I have framed them mainly as bad.
26:24
SPEAKER_00: I don't necessarily think each statement is exactly correct.
26:27
SPEAKER_00: I think office exclusives are simply a tool, just like a hammer.
26:31
SPEAKER_00: Hammer can build a house or it can break a window.
26:33
SPEAKER_00: The question isn't whether the tool's good.
26:35
SPEAKER_00: The question is whether you're using it appropriately.
26:38
SPEAKER_00: For me, Refkin is not.
26:40
SPEAKER_00: When 50% of his company's listings are electing this strategy, this isn't about seller choice.
26:47
SPEAKER_00: Particularly when you have a similar company, EXP, who stated that over 300,000 listings resulted in less than 1,000 choosing exclusive or private listings.
26:58
SPEAKER_00: What does that tell you?
26:59
SPEAKER_00: What, EXP didn't offer that?
27:01
SPEAKER_00: EXP doesn't do a good job of explaining choices?
27:03
SPEAKER_00: Or better yet, it explains that EXP wasn't trying to talk them into or coerce them to use this particular method.
27:12
SPEAKER_00: I would love for somebody to look at the numbers for anywhere and tell us before Compass bought them how many office exclusives were being done by anywhere.
27:21
SPEAKER_00: I bet the number's a fraction.
27:22
SPEAKER_00: Guarantee it's nowhere near 50%.
27:24
SPEAKER_00: For me, it's probably less than 1%.
27:26
SPEAKER_00: But most importantly, in this whole debate, whether your client understands exactly why you're recommending it, if your seller fully understands that limiting exposure may reduce the number of potential buyers, reduce the competition, potentially affect the final sales price, and still decides that privacy is more important, then wonderful.
27:46
SPEAKER_00: That's informed consent.
27:47
SPEAKER_00: That's fulfilling your fiduci duty.
27:49
SPEAKER_00: But if the seller is simply told, hey, this is what our company does, we think this is a good marketing strategy because it'll help you set the price or test the market, that's bullshit.
27:58
SPEAKER_00: But this is a new way that real estate works without ever discussing the alternatives.
28:02
SPEAKER_00: That's what we're doing now.
28:03
SPEAKER_00: And I think we've got a big problem.
28:04
SPEAKER_00: Because at this point, whose interests are truly being served?
28:07
SPEAKER_00: Is it the sellers?
28:08
SPEAKER_00: Is it the brokerage?
28:09
SPEAKER_00: That's the question that every broker should ask themselves before recommending office exclusive.
28:14
SPEAKER_00: Now, I'd like to zoom out for a second and talk about what happens if office exclusives stop being the exception and then become the rule.
28:20
SPEAKER_00: Because that's really what is at stake here today.
28:22
SPEAKER_00: Office exclusives are relatively uncommon until Robert Refkin.
28:27
SPEAKER_00: But imagine a world where 20% or 40% or 60% became exclusive.
28:32
SPEAKER_00: What would happen here?
28:33
SPEAKER_00: I think there's five major consequences.
28:35
SPEAKER_00: One, consumers would lose transparency.
28:38
SPEAKER_00: They wouldn't be able to search for homes on Zillow.
28:40
SPEAKER_00: They wouldn't see every house on realtor.com or home.com.
28:43
SPEAKER_00: They would have to go to a bunch of different websites.
28:45
SPEAKER_00: And I think what would actually happen is consumers would have no idea whether they're seeing the available inventory or not.
28:50
SPEAKER_00: That would result in them losing confidence because no single source would tell the whole story.
28:54
SPEAKER_00: It's kind of ironic, quite frankly, that we spent decades trying to make real estate information more transparent and now we're turning around and trying to do the exact opposite.
29:03
SPEAKER_00: Number two, the MLS would become less valuable.
29:05
SPEAKER_00: I mean, w why would you need it if no one's going to put information in the MLS?
29:09
SPEAKER_00: What does that mean for the future of lock boxes for forms for cooperation?
29:12
SPEAKER_00: That's a very big question.
29:14
SPEAKER_00: That's why I found the last page of NAR's guidance so fascinating.
29:17
SPEAKER_00: NAR spends an entire page explaining why the MLS remains pro-consumer and pro-competitive.
29:22
SPEAKER_00: It highlights the broader market exposure, the transparency, the cooperation between brokers, support for fair housing, the access to historical transaction data.
29:30
SPEAKER_00: That tells me this isn't simply about compliance, it's about preserving the value of the MLS itself.
29:35
SPEAKER_00: Number three, fair housing risk.
29:36
SPEAKER_00: We've talked about that ad nauseum, which I find very interesting that they also mentioned this at the end of the letter, to support cooperation, fair housing, and transparency, and based on prior discussions with the Department of Justice, all active listings in an MLS must be made available through the VOW data feed.
29:55
SPEAKER_00: How is that any different than if you keep it off the MLS and put it just on your website?
29:59
SPEAKER_00: The DOJ is saying transparency, broad exposure is what's best for fair housing.
30:05
SPEAKER_00: Number four, appraisers are going to lose data.
30:07
SPEAKER_00: I don't think anybody's talked about that, but how are you going to get appropriate market data as an appraiser if everything is sold off market?
30:14
SPEAKER_00: And number five, brokerages just simply become new portals.
30:18
SPEAKER_00: And that's probably the biggest consequence.
30:19
SPEAKER_00: I think that's where we're all headed, is that you just become a portal.
30:22
SPEAKER_00: Whoever controls the portal wins.
30:24
SPEAKER_00: I don't think that's really a good thing for the real estate brokerages, that it just becomes about three portals and everybody has to belong to one of those portals.
30:33
SPEAKER_00: So the real debate here is whether residential real estate is moving away from a cooperative marketplace and toward competing private marketplaces.
30:40
SPEAKER_00: Because if that happens, consumers are eventually going to need five apps, six brokerages, relationships, and multiple websites just to see what's for sale.
30:46
SPEAKER_00: And I don't believe that's going to be a better experience for the buyer, the seller, or the real estate agent.
30:50
SPEAKER_00: And that's why this conversation matters.
30:52
SPEAKER_00: And it's not about protecting the MLS simply for the sake of protecting the MLS, it's protecting the transparency that has historically benefited consumers while still respecting the seller's right to choose a different path when that choice is truly informed and truly in the seller's best interest.
31:07
SPEAKER_00: So let me leave you today with one question.
31:09
SPEAKER_00: The next time you're advising a seller or reviewing your advertising or considering a new marketing strategy, don't ask yourself, is this allowed?
31:17
SPEAKER_00: That's the minimum legal standard.
31:18
SPEAKER_00: Instead, what you should ask yourself, if I were the client, would I want someone to tell me this before I made my decision?
31:25
SPEAKER_00: Because if the answer is yes, that's probably something you should be disclosing.
31:29
SPEAKER_00: If every real estate professional approached their business this way, I think we'd have fewer complaints, fewer lawsuits, better informed consumers, and a much stronger profession.
31:38
SPEAKER_00: All right, that's all the time we have for our show today.
31:39
SPEAKER_00: I want to thank NAR for issuing this guidance letter.
31:41
SPEAKER_00: I do think it's outstanding.
31:42
SPEAKER_00: You should take a look at it.
31:43
SPEAKER_00: And uh, if you enjoy Dish and Dirt, please come back again next week for another episode.
31:47
SPEAKER_00: Please like and share, subscribe.
31:48
SPEAKER_00: Please click that subscribe button up there on the YouTube page or on the podcast you listen to so that you'll be notified of future episodes.
31:56
SPEAKER_00: Y'all take care and have a wonderful.