Latest / Dishin' Dirt with Gary Pickren / "Coming Soon" Listings Are Already on the Market — and Using Them Could Get You Sued.

Transcript

"Coming Soon" Listings Are Already on the Market — and Using Them Could Get You Sued. · Dishin' Dirt with Gary Pickren

• 0:00
  All right, guys, before anyone gets upset, let me say this up front.
• 0:03
  I'm not attacking any individual agent today, a particular brokerage, particular platform or a portal or any specific MLS, because today this episode is about the legal, ethical, the fiduciary, the antitrust, and all practical realities, including whether or not you're violating state law, whether you're violating MLS rules, all of this surrounding the issue of the coming soon marketing.
• 0:27
  And here's the premise for today's discussion.
• 0:29
  A property that is being advertised as coming soon is not actually coming soon.
• 0:34
  It's not.
• 0:35
  That property has already arrived.
• 0:36
  If you are advertising it, if you're marketing it, posting it on social media, putting it out there on your website, or even sending emails about it, texting other agents talking about it, or talking publicly to other people, including possible consumers, then the property is already for sale.
• 0:53
  The seller's already decided to sell it, the agent has already decided to market it, and the property has already arrived in the marketplace.
• 1:00
  It's not coming soon, it's already gotten there.
• 1:02
  And the fact is the real estate commission has directly addressed coming soon advertising already.
• 1:07
  We did that on the South Carolina Real Estate Commission site.
• 1:10
  You can go look under our guidance rules and you'll see that entire report.
• 1:14
  And if I was a betting man, which sometimes I am, I would bet there'll be a second time that the real estate commission comes out and says what you need to hear about coming soon.
• 1:23
  Because coming soon is still a huge, huge problem in South Carolina.
• 1:28
  The South Carolina Real Estate Commission has expressly stated that coming soon advertising is in fact marketing.
• 1:35
  So why are we trying to pretend it is not?
• 1:37
  Is this a false or misleading advertising issue?
• 1:40
  I think it is.
• 1:41
  We're going to cover this and a whole lot more on Dish and Dirt today.
• 1:46
  This is Dish and Dirt with Gary Pickering, South Carolina's only podcast dedicated to the real estate agent craft.
• 1:53
  And now the host of Dish and Dirt, Gary Pickering.
• 2:14
  One of the most fundamental rules in South Carolina real estate law is found in South Carolina Code Section 40-57-135E1.
• 2:23
  And what that statute tells us is that a licensee may not advertise, market, or offer to conduct a real estate transaction involving real estate owned in whole or in part by another person without first obtaining a written listing agreement between the property owner and the real estate brokerage firm with whom the licensee is associated.
• 2:44
  This is simple to understand.
• 2:46
  The real estate licensee cannot market property without written authority from the owner.
• 2:52
  Written authority is the key word here.
• 2:54
  The authority comes through the signed listing agreement and can come nowhere else.
• 2:59
  It is not optional.
• 3:00
  It isn't a best practice issue.
• 3:02
  This is the law.
• 3:03
  This is required.
• 3:04
  It cannot be inferred.
• 3:06
  It cannot be verbal.
• 3:07
  There's one way and only one single way.
• 3:10
  It is through a written signed agency agreement.
• 3:13
  Now, every year, every month, every week, I hear stories about agents posting coming soon advertisements all over social media.
• 3:21
  And some of the time they do this before they've even obtained a signed listing agreement.
• 3:27
  Perhaps the seller verbally told them that was fine.
• 3:30
  Maybe they shook hands.
• 3:31
  Maybe the seller said they intend to sign one later.
• 3:33
  But as I said, none of that matters.
• 3:36
  Without a signed listing agreement, you do not have authority to market the property in any form or fashion.
• 3:42
  You don't have the right to advertise it.
• 3:44
  You can't put it on Facebook.
• 3:46
  You can't create a social media campaign, an Instagram reel, any of that.
• 3:51
  You can't put it on X.
• 3:52
  You can't send out flyers.
• 3:54
  And you most certainly may not, under any circumstances, blast out an email that says new listing coming soon.
• 4:00
  Because legally, you don't even have a listing.
• 4:03
  And without a listing, you can't market property.
• 4:05
  The South Carolina Real Estate Commission has repeatedly emphasized that advertising requires written authority.
• 4:12
  No signed listings, no marketing, period.
• 4:15
  That includes coming soon.
• 4:16
  So before we even get into the MLS rules, the antitrust issue, the fair housing concerns, the fiduciary problems that we see here, we have to start with that basic principle.
• 4:26
  Everyone must understand until you have the signed listing agreement, there may not be any advertisement at all.
• 4:33
  And coming soon is in fact advertising and marketing.
• 4:36
  There cannot be any misunderstanding about that.
• 4:39
  A coming soon property simply requires a signed listing agreement.
• 4:44
  If it doesn't exist, you shouldn't be advertising it in any status.
• 4:48
  And even if you have a signed listing agreement, the real estate commission also says you cannot advertise property as coming soon before the listing agreement's beginning date.
• 4:58
  So you need to look at your beginning date in your listing agreement.
• 5:00
  Until you hit that beginning date of marketing and advertising, you may not market and advertise.
• 5:06
  And that includes saying something is coming soon.
• 5:08
  I think you shouldn't be marketing coming soon, period.
• 5:10
  And we're going to talk about that as we move along.
• 5:12
  So now let's assume that we actually do have a signed listing agreement.
• 5:16
  Some agents believe that obtaining the signed listing agreement somehow creates a lengthy period of time where they can market the property however they choose before they even place it in the MLS.
• 5:26
  And for the most case, that's not true.
• 5:29
  Most MLS systems in South Carolina do have rules requiring listings to be entered into the MLS within a very short period of time after you've obtained the signed listing agreement.
• 5:40
  Typically, what we're talking about here is 24 to 48 hours, not weeks, not months, not whenever you finally feel like getting around to it.
• 5:47
  The purpose of this is very obvious.
• 5:49
  The MLS system exists to create cooperation so that we have market transparency.
• 5:55
  Market transparency is massive right now.
• 5:58
  We just lost a massive lawsuit over the lack of transparency as it relates to your commission.
• 6:03
  What we're now talking about is having properties available to each and every human being on planet Earth at the exact same time, under the exact same rules, but everybody having the exact same opportunity to make an offer and see the property.
• 6:15
  It is about market transparency.
• 6:17
  They exist so participants have that equal access to the inventory at the same time.
• 6:22
  There's rules that are specifically designed to prevent pocket listings and secret inventory.
• 6:27
  And that's what we're trying to avoid: a two-market tier system, a system where the public gets to see one market and the people that hire the right agent or have the right access because they know somebody creates another secret or shadow market.
• 6:40
  In real estate, we are talking about fiduciary duties.
• 6:43
  We're talking about federal laws and state laws, fair housing laws, and all kinds of rules and regulations that have to go into housing to protect the consumer.
• 6:50
  And we cannot have two marketplaces where one is available to one group of people and another group of people get access to the other.
• 6:56
  It all has to be transparent for everyone.
• 6:58
  And that's the purpose of the MLS.
• 7:00
  That is the purpose for having the 24 to 48 hour rule on getting all of your listings entered into the MLS.
• 7:06
  Even though we have this issue out here, we are still seeing many people, many agents treat coming soon as some loophole that it isn't.
• 7:14
  They believe there's a loophole out there that allows them to create the market.
• 7:17
  This is where the real problem lies.
• 7:19
  You have real estate agents who are trying to create a second secret marketplace, a shadow market where access is only granted to the right connected people.
• 7:29
  You don't use our brokerage, you're not connected, you don't get to see access.
• 7:33
  If anyone thinks this is not going to backfire Bigley, you are absolutely insane.
• 7:38
  How quickly we have forgotten about a$1.5 billion verdict against an industry for doing something they had been doing for decades.
• 7:46
  I've been doing this for 30 years, and the multiple listing service had been around for decades before then.
• 7:51
  It was perfectly legal to advertise and guarantee compensation.
• 7:55
  There was no law preventing it.
• 7:57
  It didn't matter.
• 7:58
  And I got 1.5 billion reasons to prove to you it didn't matter that the law allowed it, and we've always done it this way.
• 8:04
  So whatever you do, when you email me, and I love when you email me to tell me your thoughts about this show, please don't tell me it ain't against the law or that's the way we've always been doing it.
• 8:13
  So you're wrong.
• 8:14
  Because I'm not, because we had always been doing it with the MLS and guaranteed comp.
• 8:19
  It was the way it had been done for generations, it wasn't illegal, and you still lost$1.5 billion verdict that changed how you practice real estate today.
• 8:28
  Without that lawsuit, you'd probably still be doing guaranteed compensation to the multiple listing service.
• 8:33
  So that lawsuit changed the way real estate has been handled in probably one of the most fundamental manners ever in the history of our industry.
• 8:39
  Now, the MLS rules generally require timely submission of listings.
• 8:44
  And the details vary a little bit from MLS, but the philosophy does remain the same.
• 8:48
  The MLS is intended to expose inventory to the entire marketplace.
• 8:53
  The MLS is not designed to conceal it, to ration it out, to selectively distribute it, they're to expose it.
• 9:00
  That's why we don't have a system where you can pay extra money and be an elite MLS person so that you get access to it a day before or two days before.
• 9:09
  Imagine that.
• 9:09
  If I could pay an extra$1,000 a month and be the first agent to see all the listings 24 hours before everybody else, we don't have that.
• 9:16
  And why do we not have that?
• 9:18
  Because the purpose of the MLS is to expose the inventory to the entire marketplace, not to conceal it, not to select who gets to see it.
• 9:26
  It's so everybody gets the opportunity.
• 9:28
  And remember, the Real Estate Commission advised you that the South Carolina statutes and regulations overrule any MLS or any association rule.
• 9:36
  And as such, any MLS or association rule that allows for advertisement of a coming soon property that is in violation of our South Carolina laws will be overruled by the statute.
• 9:46
  So please don't come at me either saying, well, my MLS allows coming soon.
• 9:50
  I think all of your coming soons are going away.
• 9:53
  I think they are an absolute hazard and a definite impediment to you performing your fiduciary duties for your seller.
• 9:59
  You're going to get sued doing coming soon.
• 10:02
  Got agents out there who still believe we should be doing things the way we did prior Sitzer Burnett.
• 10:06
  We are in the Sitzer Burnett era.
• 10:08
  It's not changing that.
• 10:10
  Anything you want to happen, that ship is already sailed.
• 10:13
  Change is happening, whether you like it or not.
• 10:15
  Embrace it and move on and quit fighting it.
• 10:17
  This is one of those things that is going to go away.
• 10:19
  You're not going to continue to be able to use this false coming soon mantra that is completely deceptive and misrepresentation of the property.
• 10:27
  Your MLS, remember, allowed y'all to do a cooperative compensation guaranteed on the MLS.
• 10:32
  And it wasn't against law, and you wind up with a huge verdict.
• 10:35
  Now let's discuss a legitimate situation.
• 10:37
  Let's suppose you are an agent who a seller has called you to come and review their house.
• 10:43
  And you go out there and the house needs repainting, it needs to be refurbished, it needs to be refinished, countertops are awful, these people are pack rats, it looks like a complete rat hole.
• 10:52
  Maybe they started packing, maybe they started cleaning.
• 10:54
  And what they're asking for is for you to give them advice, counsel, and advocacy and getting their house ready to list it, but yet they're not ready to have this home to have pictures taken of it and being put on the greater multiple listing service.
• 11:06
  Those are legitimate reasons to delay MLS exposure.
• 11:08
  But South Carolina law is very clear in this situation.
• 11:11
  You still have to get agency signed in order to provide client services.
• 11:16
  Client services include giving advice or advocating for somebody or counseling for them.
• 11:21
  If at any time you are telling them that you need to paint this house, you need to remove these items from the house, you need to remove these pictures, you need to clean this clutter, you are providing advice and counsel.
• 11:30
  That is illegal without a signed listing agreement and creating client service relationship.
• 11:35
  Now the problem begins, though, is that you've now signed agency.
• 11:39
  MLS rules require you to put it immediately in the MLS within 24 or 48 hours, but your seller doesn't want to market and advertise the house yet because they're not ready.
• 11:48
  Well, most MLSs have recognized that reality, and that's why many of the MLSs have forms that allow you to withhold the listing from the MLS.
• 11:54
  All you have to do is fill out a form that says withhold from listing.
• 11:57
  I think the CMLS here in Columbia has a 90-day withhold.
• 12:00
  You fill a form and says we've signed this listing agreement.
• 12:02
  Here's our information as we're required to give you within the time frame.
• 12:05
  However, my seller has uh elected not to advertise the property at this point.
• 12:09
  But what that does mean, and this is the critical point, if the seller signs a form directing that the property be withheld from MLS exposure, that generally means it cannot be publicly marketed.
• 12:20
  Let's think about that logic now for one second.
• 12:21
  Why this is important.
• 12:23
  The seller has elected not to expose their rat trap of a home on the MLS.
• 12:27
  They recognize that if they were to market the house right now in the current state that it's in, it would be detrimental to them in getting this house sold.
• 12:35
  They need to get the improvements done, they need to get it decluttered, they need to get it cleaned, and it will show better and it will sell for more money.
• 12:40
  Now, the seller has elected not to expose this property to cooperating brokers.
• 12:45
  The seller's also elected not to expose the property to the general public marketplace.
• 12:49
  So, how can an agent then simultaneously advertise this property as coming soon?
• 12:55
  That's still marketing.
• 12:56
  Let me repeat that.
• 12:58
  Coming soon is marketing.
• 13:00
  Posting a teaser about the property is marketing.
• 13:03
  Posting a countdown is marketing, posting photos, videos, all marketing, sending an email, a text message, also marketing, talking about it public, all marketing.
• 13:12
  If the seller has elected to withhold the property from public exposure, then public exposure, which is your coming soon, defeats the purpose of the withholding.
• 13:22
  So you violated MLS rules and you violated what your client has told you to do.
• 13:26
  The South Carolina Real Estate Commission has addressed many of these concerns in a memorandum we issued a couple of months ago regarding coming soon advertising.
• 13:33
  You can go to a website at South Carolina Real Estate Commission's website, look under the guidance and letters of opinion, you click on that, and then you'll find the one that says guidance on coming soon.
• 13:43
  Perhaps you should read it.
• 13:44
  Just saying it might be a good idea to make sure the practices you're doing actually are in compliance with real estate law.
• 13:50
  Because I can tell you, when a real estate commission has to have a hearing and they've told you not to do something and you do it, and you come in and say, I didn't know, and we have an order or a guidance letter saying, here it is, don't do it, it's kind of hard to defend yourself.
• 14:03
  The commission in that guidance letter specifically recognized that these practices create confusion regarding MLS participation, market obligations, and the consumer expectation.
• 14:13
  And a guidance letter, in my opinion, makes it clear that agents should be extremely cautious when using coming soon advertising because advertising coming soon in and of itself is marketing, and state law now applies.
• 14:25
  So here's a question I always ask when I teach a class that concerns coming soon.
• 14:29
  Suppose that a property is advertised as coming soon.
• 14:33
  Can a buyer still submit an offer?
• 14:36
  Well, of course they can.
• 14:37
  There's no law preventing a buyer from submitting an offer on coming soon.
• 14:41
  There's no regulation preventing it.
• 14:43
  There's no magic force field around the property that allows only the people that the agent wants to know about the property coming soon can know about it and make an offer.
• 14:52
  If someone sees your coming soon advertisement and wants to buy the property, they have the right to submit an offer.
• 14:58
  And then that creates a legal obligation to you.
• 15:01
  And what is that legal obligation?
• 15:02
  Well, the legal obligation under our state law is the listing agent must present all offers to the seller.
• 15:09
  Every single offer.
• 15:10
  Any offer you receive in writing, you have to present that offer to the seller.
• 15:14
  The South Carolina agency law requires that.
• 15:16
  Your fiduciary duties require that.
• 15:18
  Your legal and ethical obligations require that.
• 15:20
  You don't get to say we aren't accepting offers yet because it's coming soon.
• 15:23
  We'll look at offers after our coming soon period ends.
• 15:26
  We're going to wait till next week when we're actually live and on the MLS.
• 15:29
  No, the seller gets to decide what offers they're going to consider, counter, or accept, not the agent.
• 15:35
  And the law requires you to present all those offers, whether the house is in your coming soon status or is even under contract, you still have to submit all offers.
• 15:44
  The moment an offer arrives, the listing agent has a duty to present it in a reasonable time.
• 15:49
  That creates that obvious contradiction, in my opinion.
• 15:52
  If a property is truly not available, why are we advertising it?
• 15:56
  And secondly, if it is available, then it isn't really coming soon now, is it?
• 16:01
  It's available.
• 16:02
  It's available right now.
• 16:03
  The central thesis I'm trying to get across to everyone today in this episode is that the phrase coming soon is largely a marketing fiction.
• 16:12
  That's exactly what we're talking about here.
• 16:14
  Coming soon isn't reality.
• 16:16
  It is a marketing fiction.
• 16:18
  And I would argue it's a misrepresentation in marketing.
• 16:21
  The property is already for sale.
• 16:23
  The seller has already hired an agent through a signed listing agreement.
• 16:27
  The seller has already authorized marketing, because if they haven't authorized marketing, you can't market coming soon.
• 16:32
  The property has already entered the marketplace.
• 16:35
  The only thing that is supposedly coming soon is the broader access.
• 16:39
  The limited access is already there.
• 16:41
  But broader access is exactly what creates many of the problems that we're discussing here today.
• 16:47
  Because once access is restricted, we start entering very dangerous territory, territory that can result in many lawsuits as well as claims for fair housing violations.
• 16:58
  Now let's discuss something that often gets overlooked in the coming soon debate.
• 17:01
  What if the problem isn't just MLS compliance?
• 17:04
  What if the problem isn't that advertising itself may be misleading?
• 17:08
  And I think it's very misleading to say something's coming soon when it's actually there.
• 17:11
  The issue isn't whether an agent intended to deceive someone by saying the property's coming soon.
• 17:17
  It wasn't my intent.
• 17:18
  Can't help they don't understand what the word coming soon means.
• 17:21
  The problem is if consumers believe a property cannot be purchased because it is coming soon, when in fact offers can be submitted and accepted immediately, then we have to ask ourselves whether the advertisement accurately communicates the truth.
• 17:38
  Because the consumers aren't going to understand that coming soon means I still can submit an offer.
• 17:44
  South Carolina law does not simply regulate whether an agent can advertise, it regulates how an agent advertises.
• 17:52
  And under South Carolina Code 4057, the real estate commission has the authority to discipline licensees for false, misleading, or deceptive advertising practices.
• 18:01
  The statute specifically addresses making material misrepresentations and engaging in conduct that is dishonest or misleading to the public.
• 18:09
  So let me ask the simple question.
• 18:10
  When an agent advertises a property as coming soon, what are you telling the public?
• 18:16
  Most consumers hear that phrase and they assume the property is not available yet, but it is.
• 18:22
  They also assume it can't be purchased yet, but it can.
• 18:25
  They assume that offers can't be submitted yet, but they must be allowed to be submitted because you have to submit them to your seller in a reasonable time frame.
• 18:34
  And it won't be marketed until some future date, which is not true.
• 18:38
  It's being marketed right now.
• 18:39
  The fact that you're saying the property is coming soon is in fact marketing and you're marketing it right now.
• 18:44
  So everything that a consumer believes, the property is not available, can't be purchased, offers can't be submitted, and is not available until some future date are all not true.
• 18:54
  So if you're marketing and advertising something as coming soon, how are you not engaging in conduct that is dishonest and misleading the public?
• 19:01
  At a minimum, it's misleading the public.
• 19:04
  What we do know is what the consumer believes is not true.
• 19:06
  The seller has already decided to sell the property.
• 19:09
  The seller has already signed a listing agreement.
• 19:11
  The agent has already begun marketing.
• 19:13
  The property is already being advertised.
• 19:15
  The property can receive offers and the seller can accept offers and can close on those offers.
• 19:19
  The listing agent must present those offers received.
• 19:22
  So what is exactly coming soon?
• 19:25
  That's going to create a very serious problem because if a reasonable consumer believes that property is not yet available for purchase, but the property is actually available for purchase and other people are seeing the property, is the advertisement creating a false impression?
• 19:39
  The real estate commission has repeatedly emphasized that advertisements are evaluated from the perspective of the public and not of the agent.
• 19:47
  Now that's very important because we're not looking at the perspective of the listing agent what they meant or what they intended.
• 19:52
  We're not looking at it from whatever the perspective of the MLS rules are.
• 19:55
  We're going to look at it from the perspective of an ordinary consumer.
• 19:59
  An ordinary consumer frequently interprets coming soon to mean exactly what the word suggests.
• 20:06
  It's not available.
• 20:07
  It will be available at a later date.
• 20:10
  But if the property can be purchased today, if the property can receive offers today, it can be sold today.
• 20:16
  So then describing it as coming soon begins to look very problematic.
• 20:20
  Words do matter, and I think that's being greatly overlooked right now in our marketplace.
• 20:26
  What you say in advertising matters.
• 20:28
  Consumer perceptions matter.
• 20:29
  The law doesn't just prohibit outright lies, it prohibits statements that create misleading impressions.
• 20:35
  I don't know how you can hear coming soon and not believe that is misleading a large portion of consumers into believing that the house is not available for them.
• 20:44
  And if it is not available for them in your mind as the listing agent, it's only available to other people, then we have a bigger problem we're going to talk about in just a minute.
• 20:51
  But let's go over some examples.
• 20:52
  Imagine if I advertise a home as waterfront when it's merely has a distance view of water.
• 20:57
  That's very misleading.
• 20:58
  Imagine if I had a property that I advertise as new construction when it was built five years ago.
• 21:02
  That's also very misleading.
• 21:04
  Likewise, if I advertise property as coming soon when it is already available for purchase, we should be at least asking whether the words accurately describe reality, which they're not.
• 21:14
  The real estate commission has already stated that coming soon, advertising is marketing.
• 21:19
  Once we accept that proposition, another question naturally flows.
• 21:22
  And that question is if the property is already being marketed, is it really coming soon at all?
• 21:28
  The answer is no.
• 21:29
  It's already arrived.
• 21:31
  The safest approach for licensees is very simple.
• 21:33
  Say what you mean, mean what you say.
• 21:35
  If the property is available for purchase, avoid language suggesting that it's unavailable.
• 21:39
  If offers may be submitted, avoid language suggesting they can't be.
• 21:43
  If the property is already being marketed, avoid language implying that the market has not begun.
• 21:47
  Because the easiest way to avoid allegations of false or misleading advertising is to make sure the advertisement actually reflects reality.
• 21:55
  And the reality is this, guys if the property is being advertised, it's already in the market.
• 22:00
  Place.
• 22:00
  It isn't coming soon.
• 22:01
  It's already here.
• 22:02
  I don't know how many times I've got to say that.
• 22:03
  The argument that the property is not being marketed because it's only coming soon is 100% inconsistent with the Commission's guidance.
• 22:10
  Now let's talk about antitrust.
• 22:12
  Let me be very clear.
• 22:13
  I'm not saying that coming soon violates antitrust in and of itself.
• 22:17
  It certainly looks like it in a lot of ways, but certain practices absolutely raise antitrust concerns.
• 22:22
  Suppose a listing is marketed publicly.
• 22:24
  Suppose buyers are told about it.
• 22:26
  Suppose agents know about it, but access is limited to select few.
• 22:30
  The only agents within that one brokerage can show it, or only agents within the network or the portal or that one office.
• 22:36
  Now you have to ask yourself a very serious question.
• 22:38
  Why is it limited?
• 22:39
  Why are we limiting some competitors?
• 22:41
  Why are we excluding our competitors?
• 22:43
  Why are some brokerages denied equal access?
• 22:45
  Why are some buyers denied equal access?
• 22:47
  Because one of the primary concerns in antitrust law is concerted conduct that restricts competition.
• 22:53
  Any practice that limits market participation has to have scrutiny because at some point the lawyers are going to scrutinize it, and that means the court's going to scrutinize you.
• 23:02
  The more a listing is publicly marketed while simultaneously restricting competitive access, the more uncomfortable the legal analysis becomes.
• 23:10
  It's that simple.
• 23:10
  Imagine a scenario where a listing agent limits showings to only agents in her brokerage and unrepresented buyers.
• 23:17
  They're only people who can view it.
• 23:19
  And when a competing broker calls and asks to see it, they're denied and told that only our agents can see it and only unrepresented buyers.
• 23:27
  So you have to ask yourself some questions.
• 23:29
  How does this benefit the seller?
• 23:30
  Does this benefit the seller at all, reducing competition?
• 23:33
  How does that increase the sales price by only letting my office see the property in unrepresented buyers?
• 23:38
  How does excluding portions of the marketplace maximize exposure?
• 23:41
  It doesn't.
• 23:41
  How does withholding access encourage a highest and the best offer?
• 23:45
  It will not.
• 23:45
  And perhaps most importantly, if another brokerage did the same thing, would we consider that fair competition?
• 23:51
  Those questions are worth asking.
• 23:53
  When you start looking at the MLSs like Canopy, even the MLS form that Canopy uses for coming soons, acknowledge that coming soon status is not intended to give the listing brokerage an advantage over cooperating brokers.
• 24:05
  Then what the hell is it used for?
• 24:06
  Don't tell me it's to create excitement.
• 24:08
  What creates excitement a property that's on the market that's available to buy?
• 24:11
  I mean, you don't, if I'm looking for a house, a coming soon makes me think there's a house that's coming soon that I'm probably not going to even get to look at because by the time it comes on the market where I believe it's available to me, somebody else is already going to look at it.
• 24:23
  Canopy even says it's not intended to circumvent the sell the property on the open market.
• 24:27
  Well, it sure certainly looks like that's what we're trying to do.
• 24:30
  Let's discuss another issue: fair housing.
• 24:31
  Many agents assume that fair housing violations require intent, intentional discrimination.
• 24:36
  That's not true.
• 24:37
  Practices that disportionally impact protected classes can create significant concerns.
• 24:41
  And under the Fair Housing Act, it was designed to expand housing opportunities, not restrict them.
• 24:46
  So any practice you do that somehow limits exposure, limits access, limits visibility, or narrows that buyer pool should immediately cause you to pause and ask who might be excluded, who might never learn about this property, who might lose an opportunity to compete, who benefits from restricting exposure.
• 25:02
  If the benefit is for the buyer or the restricted exposure, does it benefit the seller?
• 25:07
  Does it benefit the brokerage?
• 25:08
  Because these are very difficult questions, and they're questions that regulators over the housing authority will increasingly start asking.
• 25:14
  Let's get to the issue that matters the most: the fiduciary duty owed to the seller.
• 25:18
  South Carolina licensees owe fiduciary duties to the seller's clients, including the duty of loyalty and acting in the client's best interest.
• 25:25
  That's another possible violation that you could have.
• 25:28
  The question should always be asked what serves the seller's best interest?
• 25:32
  Not the broker's interest, the seller's interest.
• 25:34
  And that brings us to the very fundamental question: does coming soon increase competition or does it reduce competition?
• 25:40
  Does it expand exposure or does it restrict exposure?
• 25:43
  Does it create more offers or fewer offers?
• 25:46
  Does it increase demand or does it artificially limit demand?
• 25:49
  If your goal is to maximize pricing, logic suggests exposing the property to the largest possible audience of qualified buyers.
• 25:56
  Simple economics.
• 25:57
  The broader the exposure, the greater competition.
• 25:59
  The greater the competition, the greater likelihood of stronger offers.
• 26:03
  The stronger the offer, the greater the likelihood of achieving maximum value.
• 26:07
  So if a brokerage limits access to itself, how's that serving the seller?
• 26:12
  That's a question that every one of you agents who are using these coming soons should be prepared to answer.
• 26:18
  Canopy on their coming soon authorization form contains language that directly supports this.
• 26:23
  It says it is in the best interest of most sellers to get the highest possible price and the best terms for their property and maximizing exposure of the property advance that interest.
• 26:32
  And it further warns accepting an offer on the property before it's fully exposed to the widest group of potential buyers may deny the seller the best opportunity to attract offers at the highest price and best terms.
• 26:44
  Whenever I teach agency law classes, I always ask the simple question: follow the money.
• 26:48
  Who benefits?
• 26:49
  Does the seller benefit or does the brokerage benefit?
• 26:52
  Does the seller benefit or does the listing agent benefit?
• 26:55
  Does the seller benefit or does the company benefit from double ending the transaction?
• 26:59
  If exposure is restricted, if access is restricted, if showings are restricted, if competing brokerages are restricted, then we must honestly examine who benefits from those restrictions because the answer has to be, it must be, it can only be the seller, always.
• 27:15
  So let me wrap this up.
• 27:16
  The Real Estate Commission has expressly stated that coming soon advertisement is marketing.
• 27:20
  Canopy MLS on sell authorization form warns sellers that accepting offers before full market exposure can deny them the opportunity to obtain the highest prices and the best terms.
• 27:30
  A property advertised as coming soon is already being marketed, and restricting the exposure may be difficult to reconcile with the goals of obtaining the highest and best outcome for the seller.
• 27:40
  Coming soon may sound harmless, but it does raise a host of legal, ethical, MLS, antitrust, fair housing, and fiduciary concerns.
• 27:48
  Remember these principles.
• 27:49
  You needed a signed listing agreement before you did any marketing.
• 27:52
  Most MLS systems required prompt entry after obtaining that listing.
• 27:55
  Sellers withholding forms generally prohibit public marketing.
• 27:59
  So coming soon is in fact public marketing.
• 28:02
  Offers can be submitted immediately.
• 28:05
  Offers must be presented to the seller when you receive them.
• 28:07
  So restricting access raises antitrust concerns, fair housing concerns, and every decision that you make along the way ultimately is going to be measured by one standard.
• 28:15
  Is this truly in the seller's best interest?
• 28:18
  Because if the purpose of listing property is to obtain the highest and best outcome for the seller, then limiting exposure and calling something coming soon, limiting that access and limiting that competition deserves very careful scrutiny.
• 28:30
  And perhaps the best takeaway from today's episode is this a property advertised as coming soon is not coming soon.
• 28:37
  It is a fallacy.
• 28:38
  It is nothing more than a marketing fallacy.
• 28:41
  It is a misrepresentation of the facts.
• 28:43
  That property is already here, it's already on the market, and the laws, the MLS rules, the fiduciary duties, the fair housing principles, and the antitrust concerns should be analyzed from that reality.
• 28:53
  In short, stop doing coming soon.
• 28:56
  You know it's not coming soon.
• 28:57
  You know it's available now.
• 28:58
  It is a misstatement, it's a misrepresentation, and it's gonna get you all in trouble.
• 29:03
  And with that, that's all the time we have for the show today.
• 29:06
  Thanks for listening to Dish and Dirt.
• 29:07
  If you'll come again next week for another episode, don't forget to like, share, and subscribe.
• 29:11
  And if you're watching us on YouTube, please give us that little thumbs up there and also subscribe.
• 29:15
  That helps build the brand on social media.
• 29:18
  Thank you so much, guys.
• 29:18
  I hope you all have a wonderful weekend.
• 29:20
  Take care.