Your Responsibilities with the Clear Cooperation Policy

Brokers have long used pocket listings and limited public marketing in low-inventory markets. Not only do these tactics tend to help brokers more than their clients, NAR says they also can skew MLS data, lead to lawsuits, and raise fair housing concerns.

The NAR Board of Directors responded by adopting the Clear Cooperation Policy in 2019. All MLSs had to adopt the rules by May 2020.

The Clear Cooperation Policy says brokers must submit listings to the multiple listing service within one business day of publicly marketing them. Publicly marketing is broadly defined by NAR and can include websites, emails, fliers, yard signs, and many other activities.

Questions persist about when, how, and even why the policy applies. Texas REALTOR® magazine spoke with Johnny Mowad, the 2022 NAR MLS Forum chairman and broker associate with Ebby Halliday in Dallas, to answer these questions.

The Clear Cooperation Policy reinforces the consumer benefits of cooperation and ensures that MLSs are an efficient and transparent marketplace that is pro-competitive and pro-consumer.

“The Clear Cooperation Policy advances equal opportunity in housing by ensuring that listings are widely available and accessible to all,” he says. “Without the policy, consumers would be disadvantaged because agents could refuse to give them and their agents access to property listings that are being publicly marketed.”

Off market meant off limits to some consumers

Before the policy, brokers kept properties off the MLS because of historically low inventory and high demand in popular areas, according to the NAR video “Window to the Law: Understanding the MLS Clear Cooperation Policy.”

In the video, Charlie Lee, NAR senior counsel and director of legal affairs, says brokers would claim their clients needed privacy but then publicly marketed properties to a limited number of people through exclusive networks, social media, or other means. Brokers would also misuse the coming-soon status, claiming properties weren’t ready but then allowing a limited number of people to view or even buy the property before others could.

Mowad says brokers and MLSs across the U.S. asked NAR to consider a policy that would reinforce the consumer benefits of the MLS: accuracy, competition, and transparency. The NAR Board of Directors approved the Clear Cooperation Policy following the recommendation of the NAR MLS Committee and the Technology and Emerging Issues Advisory Board.

The Clear Cooperation Policy reinforces the consumer benefits of cooperation and ensures that MLSs are an efficient and transparent marketplace that is pro-competitive and pro-consumer, Lee says.

Follow the rules to post as coming soon

The Clear Cooperation Policy applies to the public marketing of all property listings, regardless of their status, that are for sale and subject to MLS filing requirements, Mowad says.

Property listing statuses such as coming soon, delayed showing, and other pre-marketing statuses are subject to the local rules of the MLS. MLSs are not required to provide a coming-soon status. Many of the larger MLSs in Texas have it, while some of the smaller ones do not.

If your MLS provides a coming-soon status, you’re complying with the Clear Cooperation Policy if you submit your listing to the MLS in accordance with the local rules. “For example, the MLS may require that a property not be shown while it’s in coming-soon status,” Mowad explains.

If your MLS does not provide a coming-soon status, Mowad recommends that you talk with your MLS to know what options are available to best serve clients.

Listings can be private, with conditions

Sellers can still choose to exempt their listing from the MLS for privacy concerns, such as in case of divorces and celebrity clients. Sellers can then opt out by signing an exemption certificate and directing their listing broker accordingly, Mowad says. Such listings shall be filed with the service but not disseminated to the MLS participants.

A misconception is that the Clear Cooperation Policy created or allowed office exclusives, Mowad says. Office exclusives were allowed by an older policy, and the Clear Cooperation Policy didn’t change that.

Office exclusives are exactly what they sound like: Brokers can promote listings to only their brokerage’s affiliated license holders and their clients. NAR does not consider these promotions public advertising.

As soon as an office exclusive listing is publicly marketed, it must be submitted to the MLS for cooperation within one business day.

Reach out to learn more

NAR has many resources on the Clear Cooperation Policy online that you can find with the site search at nar.realtor. You can also contact your MLS to ask how the policy affects your market.

Your state and national associations are always open to member feedback, Mowad says. If you have comments and questions, do not hesitate to reach out. After all, that’s how the Clear Cooperation Policy came about in the first place.