In very active markets where properties may see immediate multiple offers within minutes of the property being offered for sale, NAR is receiving reports of real estate licensees and listing agents taking high risks for fair housing violations, lawsuits, ethics complaints, and license law complaints.
Think documented informed consent, clear cooperation policy, office exclusives, privacy, pocket listings. coming soon…
Pocket listings (advertised/communicated without a listing agreement) are high risk for ethics violations and license law violations and lawsuits.
Coming soon – requires an active listing agreement and other rule compliance.
Remember your ethical duties and license law duties to seller clients.
For typical residential resale sellers, the seller’s best interest is adequate time exposed to full market exposure via MLS and IDX MLS data feeds to the entire world on the internet.
Explain this to sellers and document.
Full market exposure allows all buyers to have opportunity to buy – this can be a defense to a fair housing complaint or fair housing lawsuit.
Full market exposure can result in sellers receiving higher prices and better terms when many buyers compete – perhaps by multiple offer "highest and best" procedures if sellers authorize even beyond the prices/terms of office exclusive multiple offer "highest and best" procedures.
With fully informed consent, some sellers may forego full market exposure for a variety of reasons (e.g., privacy, divorce, COVID, remodel, travel).
For privacy,/divorce, listing agents and sellers should never publicly market because that eliminates the privacy desired by the seller.
NAR Clear Cooperation Policy allows for office exclusives (e.g., just market to associated licensees supervised by the same BIC who is the listing broker and limited to legitimate buyers associated with this BIC’s associated licensees per NAR – not the phone book).
For COVID, perhaps video tours can be used.
For remodel/travel, perhaps the listing agreement is signed now but has a beginning date in the future so no marketing occurs until the active listing.
SC license law requires an active listing agreement to communicate/advertise a property (e.g., Facebook, private Facebook groups, social media, word of mouth, signs, emails, calls, mailers, print, open house).
Private social media groups of licensees from various BICs and limiting access is high risk for fair housing lawsuits and complaints.
Currently, NAR Charlie Lee articulated that NAR considers office exclusive to be exclusive only to the associated licensees of the BIC who supervises the listing agent or is the listing agent BIC itself (e.g., not other licensees who are licensed in branch offices supervised by different BICs even in the same company/franchise name/family/corporation/partnership).
Clear cooperation policy requires MLS entry for public marketing within 1 business day. MLS may have policies for "hold don’t show" situations. Even office exclusive listing agreements, generally by MLS rules – timely/properly disclose to MLS staff even if not going into MLS listings/IDX feeds.
NAR warns that complying with the letter of the Clear Cooperation Policy at MLS while trying to creatively endrun the spirit of the Clear Cooperation Policy at MLSi s high risk (e.g., ethics complaints, fair housing complaints, license law complaints, lawsuits, upset clients, upset consumers). Reports are that multiple brokerages may be trying to use lawyer drafted non-exclusive listing agreements or sub agency agreements in creative ways. Most MLS systems require an exclusive listing. Ensure you get legal counsel. Call the SCR hotline.
Posted by: Byron King on 2/26/21 (This information is only accurate as of 2/26/21. You must contact SCR for updates and changes to this information after 2/26/21 as laws and regulations may change over time. SCR 803-772-5206 or email info at screaltors.org)