Category : MLS (Multiple Listing Service)

Data Licensing MLS (Multiple Listing Service) NAR

MLS Policy Change for Broker AVMs

There’s been a lot of talk about monetizing MLS data.

Tomorrow, May 17, is a big day in DC as NAR’s Board of Directors considers an amendment to NAR’s MLS Policy to make clear that MLSs must provide participant brokers with a source of MLS data (either downloads or data feeds of active, sold and off-market data) that brokers can then use to generate automated valuation models (AVM) using software licensed from a third party in order to sell those AVMs to financial institutions in return for a fee independent of a real estate sales commission.

And if brokers are allowed such access for AVM purposes, the amendment needs to make clear whether or not listing brokers can opt-out of providing their listing data.

The issues are complicated and the stakes are high, as is the fear of unintended consequences with any policy change. For a comprehensive analysis of the issues from two well-regarded authorities on MLS policy and practice, you’ll want to read the reports of Brian Larson and Matt Cohen cited below.

In his mlstesseract.com blog, Brian Larson sets forth a detailed analysis of the issues in a five-part series on the question of whether and how brokers participating in MLS may use listing data of other brokers to power AVMs sold into the real estate vertical.

In a Whitepaper – Broker AVM: Exploring the Controversy – Clariety Consulting’s Gregg Larson and Matt Cohen outline the controversy over who should be able to monetize MLS data with AVM customers.

Also, see these relevant Inman News articles:

The Broker AVM controversy began when Realty Alliance outlined its position in a letter to NAR January 27, 2014 – 

And here is the Realty Alliance statement on their Facebook page on the eve of the Directors vote:

“Realtors are the most qualified to manage a valuation program (such as BPOs and AVMs). Outsiders (like Zillow and others) are not.

Why would Realtors vote to restrict their own ability to perform valuations and thus allow outsiders to have this space all to themselves? Consumers would pay the price.

MLSs should give MLS participants data/feeds for permissible uses without unnecessary delay or red tape. That is what the Advisory Board’s motion was about (now passed by the MLS committee and the Executive Committee).”

 

It will be an interesting Saturday morning in DC. How would you vote?

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Data Licensing Listing Syndication MLS (Multiple Listing Service) Uncategorized

Toward a Better Consumer Internet Experience

Redfin CEO Glenn Kelman raises some interesting points in today’s article in Inman News as he argues that brokers and the listing search portals need to work together to give real estate consumers a cohesive online experience. Glenn maintains that:

  • The goal for a broker isn’t to get more traffic than a national portal, it’s just to get more traffic than the broker had before.
  • A model of Internet coexistence based on national breadth and local depth will give the consumer the most complete real estate experience, but we need to make a few simple changes through our MLSs to create a balanced Internet ecosystem
  • Brokerage sites, including Redfin, should drive more traffic to listing brokers
  • Brokers should support the portals as a directory, not a destination, for brokers’ listings
  • Portals should advertise listings only while the listings are for sale — But the portals often keep these property details on their sites in perpetuity, without regard for local privacy customs, removing only the attribution to the broker who provided the data.
  • Brokers should ask the MLSs to represent brokers on syndication — Given the asymmetry in negotiating power and expertise between the portals and a local broker, the brokers need the MLSs to negotiate and monitor compliance on our behalf, but more aggressively than the MLSs have in the past.

Speaking to the issue of some portals continuing to use the listing data and property photos even after the property is off the market, please comment on what’s the accepted practice in your marketplace. It wouldn’t surprise me to find out that most brokers are unaware the portals take the position that they have the right to use the data and photos in perpetuity. What are your thoughts?

Source: Inman News

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MLS (Multiple Listing Service) Online Sales Public Portals

Want to Buy a House? What’s For Sale?

Today, with the aid of the Internet, consumers can find timely and accurate information about homes available for sale, at the push of a button, at the speed of light…without the inconvenience of a conversation with a real estate agent. Millions of available properties are displayed on many different real estate sites, the largest being Zillow, Trulia, and REALTOR.com

In the United States, we have a real estate marketplace that is the envy of the Free World. It is not perfect, but billions of dollars of residential real estate business is transacted year after year). A KEY ingredient to the success of our real estate marketplace in North America is MLS, or Multiple Listing Service. What exactly is “MLS”?

MLS is the coming together of Brokers (competitors) to share their listing inventory. A listing is the contract with a seller, allowing the broker to offer the property for sale, and it includes an offer of commission. MLS provides access to its inventory to brokers who represent buyers as well as sellers. An MLS in not a publicly accessible data base, unless it elects to be such.

National Association of REALTORS MLS Model Rules states:

“A Multiple Listing Service is a means by which authorized Participants make blanket unilateral offers of compensation to other Participants (acting as subagents, buyer agents, or in other agency or nonagency capacities defined by law); by which information is accumulated and disseminated to enable authorized Participants (Real Estate Broker Licensees) to prepare appraisals and other valuations of real property; by which Participants engaging in real estate appraisal contribute to common databases; and is a facility for the orderly correlation and dissemination of listing information among the Participants so that they may better serve their clients and the public. Entitlement to compensation is determined by the cooperating broker’s performance as procuring cause of the sale (or lease).” (Amended 11/96) NAR MLS Model Rules.”

The National Association of REALTORS MLS Handbook states:

“Through the facility of multiple listing, information concerning individual listings can be made known to all Realtors® who participate in the activity. In associations of Realtors® with few members, the actual operation can be very simple. Each Realtor® can duplicate enough copies of the information concerning his listing to distribute to all other participants. However, when many Realtors® are involved, the distribution of information becomes more burdensome and may require reasonable rules of procedure and efficient central office management to expedite the service. Regardless of the method, however, the basis of the multiple listing activity is the creation of a facility whereby Realtors® may most effectively invite other brokers to enter into cooperative agreements with them for the sale of their listings and provide information necessary to permit such cooperation; by which information is accumulated and disseminated to enable authorized participants to prepare appraisals and other valuations of real property; and by which participants engaging in real estate appraisal contribute to common databases. (Amended 4/92) “

MLS was created decades, maybe a century before the Internet. It was not created for the purpose of distributing MLS data for advertising, or for the creation of revenue streams with third party vendors.

Since the introduction of the Internet as a means of providing MLS information to consumers in the early 1990s, some MLSs across the country have gone beyond the original stated purpose of MLS, to the benefit and pleasure of some, as well as to the dismay and disapproval of others. In addition, the movement toward larger MLSs and regionalization has been fueled by promises of economies of scale and other potential benefits to MLS users, which may or may not materialize and there really is a question as to the power of the data, who should control it, and how, for the benefit of whom.

New Consumer portals featuring inventory received by the MLS are being met with great consumer success, making many MLSs ponder the idea of making some of their database of inventory, directly accessible to the public?

 

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Listing Syndication MLS (Multiple Listing Service)

Off MLS Means Less Money For Sellers

At least that is what Matt Fuller, GRI, e-Pro and Britton Jackson, CRS, e-Pro of Zephyr Real Estate have determined from research they did in San Francisco, California with Data from the Multiple Listing Service of the San Francisco Association of REALTORS.

2013MLS_v8

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MLS (Multiple Listing Service)

Multiple Listing Service (MLS) Defined in the NAR 2014 MLS Handbook

In the residential home and condo sales industry, multiple listing service (MLS) is:

  • A facility for the orderly correlation and dissemination of listing information so participants may better serve their clients and customers and the public
  •  A means by which authorized participants make blanket unilateral offers of compensation to other
    participants (acting as subagents, buyer agents, or in other agency or nonagency capacities defined
    by law)
  •  A means of enhancing cooperation among participants
  •  A means by which information is accumulated and disseminated to enable authorized participants to prepare appraisals, analyses, and other valuations of real property for bona fide clients and customers
  • Ameans by which participants engaging in real estate appraisal contribute to common databases
    (Revised 11/04)

Entitlement to compensation is determined by the cooperating broker’s performance as procuring cause of the sale (or lease). (Revised 11/94)

While offers of compensation made by listing brokers to cooperating brokers through MLS are unconditional,* a listing broker’s obligation to compensate a cooperating broker who was the procuring cause of sale (or lease) may be excused if it is determined through arbitration that, through no fault of the listing broker and in the exercise of good faith and reasonable care, it was impossible or financially unfeasible for the listing broker to collect a commission pursuant to the listing agreement. In such instances, entitlement to cooperative compensation offered through MLS would be a question to be determined by an arbitration hearing panel based on all relevant facts and circumstances including, but not limited to, why it was impossible or financially unfeasible for the listing broker to collect some or all of the commission established in the listing agreement; at what point in the transaction did the listing broker know (or should have known) that some or all of the commission established in the listing agreement might not be paid; and how promptly had the listing broker communicated to cooperating brokers that the commission established in the listing agreement might not be paid. (Revised 11/98) M

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MLS (Multiple Listing Service)

What is a Multiple Listing Service?

In the United States, we have a real estate marketplace that is the envy of the Free World. It is not perfect, but billions of dollars of residential real estate business is transacted year after year). A KEY ingredient to the success of our real estate marketplace in North America is MLS, or Multiple Listing Service. What exactly is “MLS”?

MLS is the coming together of Brokers (competitors) to share their listing inventory. A listing is the contract with a seller, allowing the broker to offer the property for sale, and it includes an offer of commission. MLS provides access to its inventory to brokers who represent buyers as well as sellers. An MLS in not a publically accessible data base, unless it elects to be such.

National Association of REALTORS MLS Model Rules states:

“A Multiple Listing Service is a means by which authorized Participants make blanket unilateral offers of compensation to other Participants (acting as subagents, buyer agents, or in other agency or nonagency capacities defined by law); by which information is accumulated and disseminated to enable authorized Participants (Real Estate Broker Licensees) to prepare appraisals and other valuations of real property; by which Participants engaging in real estate appraisal contribute to common databases; and is a facility for the orderly correlation and dissemination of listing information among the Participants so that they may better serve their clients and the public. Entitlement to compensation is determined by the cooperating broker’s performance as procuring cause of the sale (or lease).” (Amended 11/96) NAR MLS Model Rules.”

The National Association of REALTORS MLS Handbook states:

“Through the facility of multiple listing, information concerning individual listings can be made known to all Realtors® who participate in the activity. In associations of Realtors® with few members, the actual operation can be very simple. Each Realtor® can duplicate enough copies of the information concerning his listing to distribute to all other participants. However, when many Realtors® are involved, the distribution of information becomes more burdensome and may require reasonable rules of procedure and efficient central office management to expedite the service. Regardless of the method, however, the basis of the multiple listing activity is the creation of a facility whereby Realtors® may most effectively invite other brokers to enter into cooperative agreements with them for the sale of their listings and provide information necessary to permit such cooperation; by which information is accumulated and disseminated to enable authorized participants to prepare appraisals and other valuations of real property; and by which participants engaging in real estate appraisal contribute to common databases. (Amended 4/92) “

MLS was created decades, maybe a century before the Internet. It was not created for the purpose of distributing MLS data for advertising, or for the creation of revenue streams with third party vendors.

Since the introduction of the Internet as a means of providing MLS information to consumers in the early 1990s, some MLSs across the country have gone beyond the original stated purpose of MLS, to the benefit and pleasure of some, as well as to the dismay and disapproval of others. In addition, the movement toward larger MLSs and regionalization has been fueled by promises of economies of scale and other potential benefits to MLS users, which may or may not materialize and there really is a question as to the power of the data, who should control it, and how, for the benefit of whom.

New Consumer portals featuring inventory received by the MLS are being met with great consumer success, making many MLSs ponder the idea of making some of their database of inventory, directly accessible to the public?

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Listing Syndication MLS (Multiple Listing Service)

Delaying Data Feeds to Third Party Publishers

CLAW to delay syndication feeds by 48 hours. This has been discussed by a number of MLSs this last year.

http://www.inman.com/2014/02/14/los-angeles-claw-is-first-mls-in-the-country-to-delay-listing-syndication-feeds/

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Education & Training MLS (Multiple Listing Service)

Presentation of Offers

In a recent article, The California Bureau of Real Estate (CalBRE) focused on a real estate licensee’s duty to present all offers.
Do buyer brokers ever complain that the listing broker did not present their client’s offer to the seller? Is the listing broker required by law to respond to every offer received, either verbally or in writing?

In investigating complaints from buyers and their brokers who claim their offers were never presented to the sellers, the CalBRE summarized the basic principles regarding the receipt and handling of purchase offers:

  1. A broker or salesperson must present all offers as instructed by his or her principal. Note the seller might instruct their broker to only present offers based on certain criteria such as all cash offers or offers meeting a specific price point.
  2. A seller may accept any offer, and the best offer might not be the highest offer.
  3. A seller and/or broker is NOT required by law to respond to and/or reject an offer, either verbally or in writing. The absence of a response is not unlawful and does not automatically mean the listing broker did not present the offer.

This does not mean that the listing broker need not worry about handling offers that the listing broker deems unsatisfactory. While California law may not require a duty to respond, the CalBRE investigating a complaint will require the listing broker to provide proof that all offers were presented to the seller, or alternatively, to explain why they were not presented. Note, the listing broker will further be asked to identify and provide for inspection ALL offers received for three years, whether accepted or rejected.

The CalBRE recommends a best practice would be to keep a transaction log to record “when the offer was received, whom it was presented to (if multiple sellers), how it was presented (in person, e-mail, fax, mail, etc), when it was rejected or, and by whom. Further, some comprehensive company policy manuals direct listing agents to provide the buyer’s agent with a written acknowledgement that the offer was reviewed and rejected by the seller  — this type of risk management practice can help lessen potential complaints.

Note that the local MLS rules may contain relevant guidelines for presenting offers. For example, NAR’s Handbook on Multiple Listing Policy states in Policy Statement 7.73 that cooperating participants have the right to participate in the presentation of any offer they secure to purchase or lease to the seller or the lessor. They do not have the right to be present at any discussion or evaluation of the offer by the seller or lessor and the listing broker. However, if a seller or lessor gives written instructions to a listing broker that cooperating brokers may not be present when offers they procure are presented, cooperating brokers have the right to a copy of those instructions.

 

 

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MLS (Multiple Listing Service) Public Portals

Direct Monetization of MLS Data – Public MLS Portals

Public MLS Portals are controversial…but, if done right, they can make sense, as the Houston Association of REALTORS (HAR) and Bob Hale, its CEO, continue to advise the Industry at every opportunity (Bob is one of my industry heroes, and he introduced me to Uber when we spent a week in the Las Vegas Airport one day!).

HAR claims that it is the number one real estate portal in its market. While that may be disputed by some, it is an impressive feat to be close to first, if not first.

Might MLS public portals, within well-defined criteria, be the next step in the never-ending saga of syndication and data distribution?

The recent conversations of the NAR MLS Committee regarding MLS levels of service, and the Realty Alliance Fair Display Guidelines have brought the subject of MLS and Association Public Portals “front and center.”

Is it possible to build a Public Portal that:

1. Benefits Brokers

2. Benefits Agents

3. Benefits MLSs

4. Benefits Associations

5. Benefits Franchisers

In other words, benefits all major stakeholders, and…

6. A portal that Consumers love with robust and relevant data, true search, less advertising, mobile, parcel based (property wiki), cool technology, with acceptable privacy terms.

A number of major entities, including Point2, think so, and are creating Public Portal products for associations and MLSs. The Point2 Public Portal product is a world-class website that complies with the Fair Display Guidelines and does not require dues dollars for support, but instead shares advertising revenue with the MLSs and Associations.

Competition in the MLS Public-facing Website space includes big name players –

Rapattoni

About:
Not a true public facing portal until recently;  in the past it integrated find a home and find a realtor into its member site. Here’s a demo of their new comprehensive Rapattoni Integrated Website Service (IWS) –  http://www.rapattoni.com/multimedia/player/player.asp?v=IWSDemoVideoShortVersion.mp4&w=864&h=540&title=Rapattoni+Integrated+Website+Service

New Orleans Metro looks like their first true public facing portal http://www.nomar.org/

They also recently completed the San Francisco Association of REALTORS® member site http://my.sfrealtors.com/  http://www.rapattoni.com/news/pr/13_07_24SFAR.asp

As noted in Vendor Alley,  Rapattoni  is entering  the public facing website game with its Rapattoni Integrated Website Service (IWS). “As with their other product the new IWS works with their existing applications, which seems to be an advantage over non-MLS vendor solutions. More and more MLS vendors are adding this type of solution to their offerings. In some cases, like Solid Earth, it is becoming a “tent pole” type of product.”

Real Estate Digital (RED) – LPS

•             Operated by former LPS executives; MLS consultants

•             Entering the public-facing website arena – http://realestatedigital.com/consumer-portal/

Notice the similarity with the promotional message offered by the various public portal competitors –

From RED: “Why should national real estate websites monopolize all the money from your Broker, Agent and MLS listings?

Create your own public website that displays and promotes listings and open houses – and more importantly drives traffic and leads to your member sites and REVENUE to your organization.
Create a Lead-Generating Engine for Non-Dues Revenue.  The MLS Consumer Portal is a customizable, public-facing website, where consumers can search for Open Houses and Active listings, find their Agent or research local school and neighborhood information. Best of all, the leads and inquiries go directly back to the Agent and/or Broker of Record. Include our REALM Advertising Network and now your MLS Portal is generating revenue and working for you!

•             sample site: http://www.recolorado.com/
•             Offers a Value Estimates tool “What’s your home worth?”

CoreLogic

Mission/Sales Proposition:
“A public multiple listing website that not only delivers added value to brokers and agents, it provides consumers with something they cannot get from many other sites—truly localized listings and information. Make your association’s public website the one-stop shop for real estate in your market with a custom-designed Website from CoreLogic. Detailed listings, frequent updates, highly accurate “locals only” information, agent searches and much more provide a comprehensive picture of your local real estate market.

Become the #1 Provider of Public Property Information in Your Market.  An effective public multiple listing web site can deliver real value to your brokers and agents by promoting REALTORS® to the public and providing a friendly, consumer-centric real estate portal with the best property information on the Internet. Stop other web sites from stealing your members’ leads! Your multiple listing organization should be the one-stop real estate web site in your market. This service is available to real estate boards/associations and multiple listing organizations.”

Sample Sites                                                                                                                                                             
http://hiltonheadmls.com/
http://homelasvegas.comCoreLogic embeds the local market statistics they provide.
http://myfloridahomesmls.com//HomePageMFR.aspx?vidx=ERoQ0BM-9hCCWKizlNgKog2

•             Advertising Network –  http://www.corelogic.com/products/corelogic-real-estate-ad-network.aspx

  • The large Mid Florida MLS announced to its members that it was going to include “neutral” advertising – “The ads will appear on the home page, search results, find-an-agent page and property detail pages. While consumers will see premier brands, they’ll never see ads from brokerages, agents or real estate franchises.” Advertising launch announcement: http://www.mfrmls.com/news/815-myfloridahomesmlscom-advertising-launch

Solid Earth

  • Mission:
    We are partnering with clients to make technology accessible, useful, and valuable to real estate professionals.
  • Other Services:
    SpringAPI – The Spring API will connect developers and vendors interested in serving the Real Estate industry with real-time access to the data sets our clients have created. (marketingHYPERLINK “http://solidearth.com/products/spring/” page)
  • Clients:
    They service 24 MLSs mostly in Alabama, southeast) – http://solidearth.com/about/ including Staten Island , Charleston, North Alabama Regional.
  • Sample public portal sites:
    Chattanooga – https://homes.gcar.net/
    Emerald Coast – http://www.emeraldcoasthomesonline.com/(S(pzwwbymtt4ym2nahljscm3y4))/default.aspx
  • Other Products/Services:  APIs
    -Spring:  Pay-For-Use Business Model – Spring will allow client organizations a way out of the aging $/user model and into a more stable, sustainable pay-for-use approach. High-end users invest in necessary services and low-end users are shielded from waste expense.  An attractive bolt-on opportunity – Client organizations need not purchase “all or nothing” with Spring. Spring can grow slowly along side a legacy product allowing an organization wishing to avoid mass upheaval among membership to offer Spring to eager early adopters.  Complete Ad Network where Ad Revenue will be supplemental to the Spring business model and allow for meaningful revenue share opportunities back to the client organization.  Built on an Application Programming Interface (API) – Solid Earth maintains relationships with 27 outside vendors; all of whom access the underlying database.

MLS Direct Syndication — http://www.big-llc.com/index.jsp

A big supporter is the Huntsville Alabama MLS and their public-facing website is http://www.valleymls.com/(S(fn5g120bgxx2ltqt5ef2f1bk))/default.aspx

                Their message: It is time for MLS and Brokers to take full control of their valuable content. MLS Direct Syndication puts power in your hands in several important ways:

•Direct feeds to each recipient ensure that you know who has legitimate access to your listing feed, and therefore who should not.

•Listing feed recipients must abide by MLS terms and conditions for use. MLS can immediately suspend feeds to any group found to be out of compliance.

•MLS and MLS members decide where leads and links are directed.

•MLS Direct Syndication allows data managers and creators to charge for data access if desired. Our MLS Direct Syndication solution provides an automated process for billing.

•MLS members can determine precisely where their listings will appear, and changes can be made easily at any time.

 Conclusion:

All of these active players in the MLS public-facing website space have a common goal, namely helping the MLS in the area of competing with the large national portals for consumer traffic and agent lead generation.

DREAM?   REALITY?   or SOMETHING IN BETWEEN?

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IDX (Internet Data Exchange) MLS (Multiple Listing Service)

Summary of DOJ vs. NAR Final Judgment

Final Judgment Summary

The litigation between the Department of Justice and the National Association of REALTORS® (NAR) over claims of antitrust violations has resulted in a proposed Final Judgment that likely will become final in early September 2008 without the imposition of any fines or admission of wrongdoing.
The litigation has been costly and time consuming. Both sides claim a win. But, will the judgment have much impact on the way brokerage is practiced? When we examine the key points below, it appears that the typical real estate professional will see little change in the way they service their clients and prospects. One reason is the fact that the popular Internet Data Exchange (IDX) remains intact as a valid method of displaying other broker listings on the Internet.
Some of the key definitions in the Final Judgment include:
  • “Broker” means a person licensed by a state to provide services to a buyer or seller in connection with a real estate transaction (includes agents associated with the broker).
  • “Customer” means a seller client of a Broker or Person who has expressed to a Broker an interest in purchasing residential real property and who has described the type, features, or location of the property in which he or she has an interest, entitling the Broker to Provide the Customer MLS listing information by any method (e.g., by hand, mail, facsimile, electronic mail, or display on a VOW).
  • “Modified VOW Policy” means the policy attached to this Final Judgment as Exhibit A
  • “VOW” or “virtual office website” means a website, or feature of a website, operated by a Broker or for a Broker by another Person through which the Broker is capable of providing real estate brokerage services to consumers with whom the Broker has first established a Broker-consumer relationship (as defined by state law) where the consumer has the opportunity to search MLS data, subject to the Broker’s oversight, supervision, and accountability.
Prohibited Conduct. NAR is not to adopt rules that are inconsistent with the Modified VOW Policy or that prohibit a Broker who uses a VOW from providing to Customers on its VOW all of the listing information that a Broker is permitted to Provide to Customers by hand, mail, facsimile, electronic mail, or any other methods of delivery. Nor can NAR prohibit or restrict the referral of Customers whose identities are obtained from a VOW by a Broker who uses a VOW to any other Person, or establishes the price of any such referral.
Required Conduct. Within five business days after entry of the Final Judgment (estimated to be early September), NAR is to (1) repeal their ILD Policy, (2) direct Member Boards that adopted VOW rules to repeal such rules, (3) adopt the Modified VOW Policy (and make no changes), (4) direct Member Boards to adopt the Modified VOW Policy within 90 days of entry of Final Judgment (around the end of 2008). If NAR finds that Member Boards do not adopt consistent rules, NAR can deny coverage under any NAR insurance policy.
Permitted Conduct. NAR may adopt the definition of MLS Participant and the accompanying Note (Exhibit B). NAR is to direct each Member Board not to suspend or expel any Broker from MLS membership or participation for reasons of the Broker’s then-failure to qualify for membership or participation until May 27, 2009.
NAR is to designate an Antitrust Compliance Officer with responsibility for educating Member Boards about the antitrust laws and for achieving full compliance with this Final Judgment. NAR is to publish the Final Judgment and Modified VOW Policy on www.realtor.org and once in the REALTOR Magazine.

NAR is to permit DOJ access to records and reports for purposes of determining compliance with the Final Judgment. The Final Judgment expires 10 years from date of entry.
MLS Participant – Exhibit B Summary
A key part of the Final Judgment in the settlement of the action brought by the US Department of Justice (DOJ) against the National Association of REALTORS® (NAR) is the clarification of the definition of “MLS Participant” under Statement 7.9 of the “Statement of MLS Policy” and Section 3 of the “Model MLS Rules,” as covered in “Exhibit B” of the Final Judgment.
Under the new definition of MLS Participant, the individual or firm must hold a current, valid real estate broker’s license and offer or accept cooperation and compensation to and from other Participants.  Note that Participants can also be appraisers who are licensed or certified by an appropriate state regulatory agency to engage in the appraisal of real property.
The most significant change requires that Participants actually “offer or accept cooperation and compensation” — the previous definition required that they only be “capable of offering and accepting cooperation and compensation.”

Mere possession of a broker’s license is not sufficient to qualify for MLS participation. The requirement to offer or accept cooperation and compensation means that the participant “actively endeavors” during the operation of its real estate business to list real property of the type listed on the MLS and/or to accept offers of cooperation and compensation made by listing brokers or agents in the MLS. “Actively” means on a continual and on-going basis during the operation of the Participant’s real estate business.
The requirement is not intended to deny MLS participation based on 1) a part-time or seasonal practice 2) not achieving a minimum number of transactions despite good faith efforts, or 3) the level of service provided by the Participant. Nor can the MLS deny participation to a Participant that operates a VOW that the Participant uses to refer customers to other Participants if the Participant actively endeavors to make or accept offers of cooperation and compensation.
From NAR’s perspective, the enhanced requirement to be an MLS participant strengthens MLSs, since MLSs will now be able to terminate the access of brokers who make no effort to either list or sell property in the MLS.  A broker who only took the MLS feed to attract consumers to refer them to other brokers will no longer qualify for MLS membership.

Modified VOW Policy – Exhibit A Summary

      – The Policy governing the use of MLS data in connection with Internet brokerage services offered by MLS Participants (“Virtual Office Websites”)
The DOJ vs NAR Final Judgment requires that NAR adopt and maintain what is now referred to as the Modified VOW Policy. This new policy is the guts of the decision that will affect how a MLS Participant (as defined in Exhibit B) may provide brokerage services via a VOW and how a Multiple Listing Service permits MLS Participants to operate VOWs.
I. Key points described in the Scope of Policy are:
  • A Participant may operate their own VOW or designate an Affiliated VOW Partner (“AVP”) to operate a VOW on their behalf, subject to the Participant’s supervision and accountability and the terms of this Policy (similar to IDX solution providers).
  • With the Participant’s consent, non-principal brokers and sales licensees may operate a VOW.
  • The right to display listings in response to consumer searches is limited to display of MLS data supplied by the MLS(s) in which Participant has participatory rights.
  • Participants’ Internet websites may also provide other features, information, or services in addition to VOWs (including the Internet Data Exchange “IDX” function); thus, a site can use both IDX and VOW if desired.
  • The display of listing information on a VOW does not require separate permission from the Participant whose listings will be available on the VOW; i.e.,the opt-in/opt-out procedures with IDX do not apply to VOWs.
II. Key policies applicable to Participants’ VOWs
  • A Participant may provide brokerage services via a VOW, but only to clients and consumers (“Registrants”) with whom the Participant has first established a lawful consumer-broker relationship in compliance with state law disclosures.
  • A Participant’s VOW must obtain the identity of each Registrant and obtain each Registrant’s agreement to “Terms of Use” of the VOW. The Registrant must provide a valid e-mail address. The Participant must verify that the e-mail address is valid and that Registrant received the Terms of Use confirmation.
  • The Registrant must supply a user name and password, which password must expire on a certain date (no sooner than 90 days) but may be renewed. The Participant must keep records of Registrant access information and make them available to the MLS if a suspected violation or breach of security occurs (e.g., for audit trails).
  • The Registrant must affirmatively express agreement to a “Terms of Use” provision that requires the Registrant to open and review an agreement that acknowledges entering into a lawful consumer-broker relationship with the Participant (a “mouse click” is sufficient acknowledgement). The agreement may not impose a financial obligation on the Registrant or create any representation agreement between the Registrant and the Participant (registration is likely to raise “procuring cause” arguments). Any agreement imposing a financial obligation or creating representation must be established separately from the Terms of Use, must be prominently labeled as such, and may not be accepted solely by a mouse click.
  • The VOW must display contact information so a consumer can contact the Participant to ask questions. The participant must be “willing and ableto respond knowledgeably to inquiries from Registrants about properties within the market area served by the Participant and displayed on the VOW.
  • A Participant’s VOW must protect the MLS data from misappropriation by employing reasonable efforts to monitor for and prevent “scraping” or other unauthorized accessing, reproduction, or use of the MLS database.
  • No VOW shall display listings or property addresses of sellers who have affirmatively directed their listing brokers to withhold their listing or property address from display on the Internet. The seller must sign an approved standard form (sample located in Appendix to Exhibit A). The broker must keep the Seller Opt-Out Form on file for one year.
  • The seller can request that the VOW disable or discontinue any feature that (a) allows display of an automated estimate of the market value in immediate conjunction with the listing or (b) allows third-parties to write comments or reviews about particular listings or displays a hyperlink to such comments or reviews in immediate conjunction with the listing. A Participant may include personal comments (“professional judgment”) about other brokers’ listings posted on the VOW, and the seller’s right to require the Participant to “disable” the inclusion of third party comments does not apply to those.  But the Participant’s comments are subject to the requirement of section II.5.d that requires those statements to be accurate.
  • The VOW must maintain a means to receive comments about the accuracy of data added beyond that supplied by the MLS and that relates to a specific property displayed on the VOW. The VOW operator must correct or remove any false data (other than information that simply reflects good faith opinion, advice, or professional judgment).
  • Each VOW must refresh MLS data at least every 3 days.
  • Except as provided in this Policy or in MLS rules and regulations, no portion of the MLS database may be distributed, provided, or made accessible to any person or entity.
  • Every VOW must display a privacy policy informing Registrants how their information will be used.
  • A VOW may exclude listings from display based only on objective criteria, including, but not limited to, factors such as geography, list price, type of property, cooperative compensation offered by listing broker, or whether the listing broker is a REALTOR.
  • A Participant must notify the MLS of its intent to establish a VOW and make the VOW readily accessible to the MLS and to all MLS Participants for verifying compliance purposes.
III. Policies Applicable to Multiple Listing Services
  • MLS Participants may operate VOWs, or have Affiliated VOW Partners (AVPs) operate for them, subject to state law and this Policy.
  • Participants may request basic “downloading” of all MLS non-confidential listing data. Confidential data includes only that which Participants are prohibited from providing to customers orally and by all other delivery mechanisms. Sold data shall be deemed confidential and withheld from download only if the actual sales prices of completed transactions are not accessible from public records (in certain ‘non-disclosure’ states or counties, such as Texas, Utah, Alaska, Louisiana, New Mexico).
  • MLSs are not required to establish publicly accessible sites displaying Participants’ listings. See http://PublicListings.RealTown.com
  • MLSs may require appropriate security protections and/or maintain an audit trail of Registrant’s activity.
  • An MLS may not prohibit or regulate display of advertising or the identification of entities on VOWs except to prohibit deceptive or misleading advertising.  The seller does not have the same right to request these ads be disabled as they can with any third party comments or automated estimates of market value in immediate conjunction with the seller’s listing.  III.7 is the new version of what was referred to as the “clean page” rule in the old policy.  That rule precluded any advertising on a page of a VOW where a listing of another broker was displayed.  The new rule allows such advertising but precludes it when, in effect, it appears in such a fashion that it is not clear that the VOW itself is operated by the participant operating the VOW.  That is why there is a “deceptive or misleading standard” and a safe harbor provision addressing the size of the identification of entities other than the VOW operator.
  • An MLS may not prohibit Participants from enhancing their VOWs by providing information obtained from sources other than the MLS, additional technological services (such as mapping functionality), or information derived from non-confidential MLS data (such as estimated monthly payment derived from the listed price), nor can the  MLS restrict  the format of data display on a VOW or regulate the appearance of VOWs.
  • An MLS shall make the MLS data available to an AVP under the same terms and conditions as those applicable to Participants. AVP access to MLS data is derivative of the rights of the Participant on whose behalf the AVP is downloading data. MLSs may require Participants and AVPs to execute license or similar agreements that insure that the data provided by the MLS may be used only to establish and operate a VOW on behalf of the Participant and not for any other purpose.
  • An MLS may not prohibit, restrict, or impede a Participant from referring Registrants to any person or from obtaining a fee for such referral.
  • An MLS may impose certain requirements on VOWs but may impose them only to the extent that equivalent requirements are imposed on Participants’ use of MLS data in providing brokerage services via all other delivery mechanisms. A Participant’s VOW may not make available for search or display to Registrants the following data intended exclusively for other MLS Participants:     1. Expired, withdrawn, or pending listings     2. Sold data unless the actual sales price of completed transaction is accessible from public records     3. The compensation offered to other MLS Participants     4. The type of listing agreement, i.e., exclusive right to sell or exclusive agency     5. The sellers and occupants name, phone number, and email address, where available     6. Instructions or remarks intended for cooperating brokers only, such as those regarding showing or security of the listed property.
  • Content of MLS data that is displayed on a VOW may not be changed from the content as it is provided in the MLS. MLS data may be augmented with additional data or information not otherwise prohibited from display as long as the source is clearly identified.
  • Any listing displayed on a VOW shall identify the name of the listing firm in a readily visible color (not, for example, white on white), and reasonably prominent location, and in a typeface not smaller than the median typeface used in the display of listing data. The listing shall also identify the name of the listing agent.
  • The MLS can limit the number of listings that may be viewed or downloaded in response to an inquiry, but in no event may the limit be fewer than 100 listings or 5% of the listings in the MLS, whichever is less.
  • An MLS may not prohibit Participants from downloading and displaying or framing listiings obtained from other sources but may require either that such information be searched separately or, if such other sources are searched in conjunction with searches of the listings available on the VOW, that the display of listings from other sources identify such other source.

Additional Resource Video (6 min) – https://www.realtown.com/about/resources/InternetListingDisplayResource/Final-Summary

https://www.realtown.com/about/resources/InternetListingDisplayResource – there is a sidebar box with links to key summaries, documents, and videos of Saul and John discussing the DOJ/NAR Settlement when it was hot off the press in late 2007

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