Clear Cooperation spurs dramatic drop in pocket listings, few violations

The new Clear Cooperation policy is working, early statistics from Canopy MLS show.

Since Clear Cooperation went into effect May 1, 2020, Canopy MLS is experiencing few violations as well as a dramatic decrease in pocket listings, the primary goal of the new policy.

Prior to May 1, Canopy MLS was receiving 10 to 13 of the old Certification to Withhold Listing forms (pocket listings) a day, says Debbie Wey, vice president of MLS administration at Canopy MLS.

In contrast, from April 13 through June 26, Canopy MLS received only 139 total pocket listings by brokers submitting the new Firm Exclusive Agreement. Pocket listings are also called “Firm Exclusive” or “Withheld” listings.

“The Clear Cooperation policy is working, and most members have been conscientious about following the new policy,” says Wey. “The number of withheld listings has been well less than half of what it was before Clear Cooperation, and we’ve been fielding lots of questions about different scenarios from members seeking guidance.”

The Clear Cooperation policy requires brokers to enter a listing into the MLS within one business day from marketing the listing to the public, or within one business day from the Effective Date, Delayed Marketing Date or the beginning date of the listing term. In the past, listing brokers had 48 hours (excluding holidays and weekends) to enter a listing.

Big Change in Longstanding Policy

“It hasn’t sunk in with some people that the new listing grace period is one business day, but this is a big change from our longstanding previous policy, and most people are getting it by now,” Wey says.

Brokers are still allowed to accept a pocket listing if the seller refuses to permit the listing to be disseminated by Canopy MLS. In that case, the listing broker can take the listing as a “Firm Exclusive,” which must be submitted to Canopy MLS within two business days from the Effective Date of the listing.

The Firm Exclusive Agreement is new with Clear Cooperation, and registering Firm Exclusives has been streamlined with an online “Firm Exclusive Registration” webpage now available (see the bottom of this article for more details).

Mandated by NAR, the Clear Cooperation policy reinforces the purpose of the MLS, which is cooperation and compensation among brokers in the buying and selling of homes. The policy also supports consumers by promoting fairness and nondiscrimination by exposing listings to the extensive MLS marketplace.

Furthermore, the policy deters brokers from keeping their listings out of the MLS during times of tight inventory, sometimes with the hope that another broker in the same firm will provide a buyer for the property, in what’s called a “double-ended” deal. Tight inventory and a growth in pocket listings have been issues for more than a year in much of Canopy MLS’s service area and in other areas of the country. That’s why NAR mandated that all MLSs adopt Clear Cooperation by May 1, 2020.

In implementing the new policy, Canopy MLS gave brokers a one-month grace period, May 1 through June 1, to avoid being penalized for violating Clear Cooperation. During that time, only a few violations occurred, says Dana Gibbs-Haney, MLS compliance administrator for Canopy MLS.

Since June 1, there have only been “a handful” of violations, she notes.

Backdrop for Most Questions is Tight Inventory

Most questions on Clear Cooperation that the Canopy MLS staff is fielding are related to the tight inventory market and whether fellow subscribers are violating the new policy. Questions often arise when brokers see a new listing in the MLS only to watch it go “Under Contract” almost immediately or within a few days.

Frustrated buyer agents wonder how “Under Contract” could happen so quickly when a property hasn’t been in the MLS and, therefore, is not supposed to be marketed except within the firm of the listing agent. Yet, there are reasons a property may go under contract quickly.

“There are some buyers willing to put in offers without seeing a property,” Wey says. “Or, a buyer agent in the same firm as the listing agent may have a buyer before the marketing date.”

When Canopy MLS staff receives calls about properties that go under contract quickly after entry in the MLS, it can be an indication of a potential violation of the one-business day listing submission grace period — but not always. That’s why Canopy MLS staff requests listing documentation to verify compliance with the rules. Also, if a potential violation of the Clear Cooperation policy is reported, the staff needs information from the broker raising concerns to enable the staff to check out the situation.

Such information may include details about when the broker saw a for-sale and/or under-contract sign in the yard or when the broker spotted public marketing of the property, such as through social media or another medium. “Concerned brokers need to gather as much information as they can before contacting us,” Gibbs-Haney says.

Such brokers “typically are looking for clarification or understanding of the policy and aren’t looking to get their fellow agents in trouble,” she adds. “The most common situation reported so far has been a listing that is publicly marketed before it was inputted into the MLS, but the listing ends up being entered into the MLS within one business day of being publicly marketed. So, the listing agent is abiding by the rules.”

Register Firm Exclusives at New Website

A new Firm Exclusive registration webpage is now available. It gives brokers an easy, uniform way to submit Firm Exclusives and allows Canopy MLS to operate more efficiently.

Brokers can find the new registration webpage in Matrix under “Resources.” After clicking on that, go to “Canopy MLS Forms” and then select “Firm Exclusive Registration” from the forms list.

Once a Firm Exclusive is registered with Canopy MLS, only Canopy MLS staff, the listing agent and, if applicable, the admin employee registering the listing can see the Firm Exclusive that was registered. Member Participants can see all Firm Exclusives registered to their office.

Despite the form, Canopy MLS discourages brokers from accepting Firm Exclusives unless it is the only way to satisfy a seller’s goals. “It’s really the broker’s job to figure out why the seller doesn’t want to be in the MLS,” MLS Compliance Administrator Dana Gibbs-Haney notes. “Putting a listing in the MLS doesn’t mean the broker doesn’t have control over where the listing goes and who sees the house.”

Adds Debbie Wey, vice president of MLS administration: “An MLS listing doesn’t have to be syndicated to brokerage websites, Zillow, realtor.com®, etc., and there is no requirement that sellers have to allow showings through ShowingTime. Brokers can control that as long as they are in compliance with fair housing rules. You don’t even have to have a lockbox on the property.”

If you or your firm would like a presentation on how to use the MLS to address seller concerns about listing in the MLS, contact Debbie Wey at debbie.wey@carolinahome.com or 704-940-3115.