Off-MLS Policy Questions, Answers and Scenarios

Content updated on January 29, 2020

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Understanding the policy

Reporting an Off-MLS Property, Fines and the Appeal Process

Coming Soon and Office Exclusives

Public Marketing

Potential Scenarios

 

Understanding the policy: 

What is the policy? Within one business day of marketing a property to the public, the Participant must submit the listing to Bright MLS for cooperation with other Bright MLS Participants. Public marketing includes, but is not limited to, flyers displayed in windows, yard signs, digital marketing on public facing websites, brokerage website displays (including IDX and VOW), digital communications marketing (email blasts), multi-brokerage listing sharing networks, and applications available to the general public.

What is an Off-MLS listing? An Off-MLS or pocket listing is marketed without being entered in the Multiple Listing system. These may be marketed and sold within a brokerage.

Which listings are subject to the policy and which are not? The Off-MLS policy pertains to Residential Sale and Rental/Lease listings, not including vacation or seasonal rentals. This includes residential new construction and properties undergoing major renovations that are not ready to be occupied. Land and Commercial listings are not subject to the policy.

Why did you create this policy? The policy was created to provide sellers with access to the largest possible group of buyers and buyers with the widest possible selection of listings. It was also created to encourage competition and cooperation of professionals within the marketplace. In addition, the policy strongly supports the ideals of fair housing, as closed and exclusive marketplaces can have ugly consequences.

Will a fine be assessed for non-compliance of the policy?  A fine of $5,000 ($500 for Residential Lease properties) may be levied for non-compliance. Additional fines may be assessed for continued violations. Fines will begin on February 1, 2020 and can be appealed at appeals@brightmls.com.

When does the new policy go into effect? The policy went into effect immediately upon the announcement on Wednesday, October 16.  Fines for non-compliance will not begin until February 1, 2020.

How does the policy compare to NAR’s Clear Cooperation Policy? Bright’s policy is almost identical to the policy adopted by NAR. Bright led the discussion on NAR’s new policy, by adopting it early and customizing it based on market needs. Practically, this meant an important update to NAR’s policy from 24 hours to one business day, based on Bright’s reason that often administration staff who enter listings only work Monday through Friday. The only difference is the effective date for NAR’s policy is May 1, 2020. The policy was in effect on October 16, and fines will be sent starting February 1, 2020.

Was this required by the Real Estate Commission? No, this is a Bright policy, not a law or a state regulation. The Off-MLS Policy is just that, a policy that all subscribers agree to as a condition for participation in Bright. It does not affect real estate practitioners who do not participate in the MLS.

Does the policy apply to rental properties? Yes, the Off-MLS policy includes rental (Residential Lease) listings. These listings will need to be entered into Bright within one business day of public marketing. Vacation/seasonal rentals are NOT subject to the Off-MLS policy. By definition, these are rentals for which the term does not exceed 180 days. Learn more here.

Does the policy apply to new construction? Yes, the Off-MLS policy includes New Construction listings. They will need to be entered into Bright within one business day of public marketing. However, New Construction and listings with significant renovations can remain in the Coming Soon status for an extended amount of time until a Certificate of Occupancy or similar permit is obtained, or until showings begin. Learn more here.

How does this impact commercial listings? Commercial listings are not subject to the Off-MLS policy.

 

Reporting an Off-MLS Property, Fines and the Appeal Process: 

How can I report an Off-MLS Property? If you believe a property is being publicly advertised and it is not listed in the MLS, you can submit a report for investigation. Login to BrightMLS.com and click the Support dropdown. Select Submit a Case and choose Off-MLS Listings under the inquiry type. The appropriate documentation is necessary for the Accuracy team to investigate the report. 

What documentation is needed for the Accuracy team to investigate a report? Bright requires documentation of the alleged violation. Please upload a file or image reflecting the public marketing of the property. This may include:

  • Photo of For Sale sign
  • Copy of a screen shot showing the link to the site with the property on it
  • Copy of flyer with the listing information
  • Email blast solicitation
  • Screen shot of listing appearing on a private network.

Will I get fined for something I didn’t realize was against the rules? Bright has an education-first policy when it comes to compliance with our Rules and Regulations. This is how fines will be handled for Off-MLS concerns as well. A warning will be sent in advance with opportunity provided to enter the listing. If a fine is assessed an appeal process is also available.

Does the Broker or Agent have an opportunity to appeal? As with all Bright policies, education is the goal. An appeal process will be made available as laid out in the guidelines. Here is more information on the Fines and the Appeal Process: https://www.brightmls.com/#/appealprocess

What is the fine amount for the first and second offense? Is the penalty per infraction? Fines begin for residential sales at $5,000 for the first offence and there are provisions for that to escalate to $7,500 and $10,000 for repeat offenses. For rentals, it is $500, $750 and $1000. The fine is per property found in violation.

Why are these fines so high? The fee is designed to assure compliance, as a lighter fee could potentially be seen as the cost of doing business. If you are not trying to actively hide listing from other agents or from certain buyers, then this policy will have no effect on you. However, in just the past few months we have become aware of nearly 1,000 listings that were actively being hidden from agents and their clients, agents who have all agreed to cooperate with you. The intent of this policy is to decrease pocket listings.

How are you monitoring and enforcing this policy? We use a variety of techniques to monitor the policy. There are a number of ways that we may become aware of a listing that seems like it is being hidden from other agents, or certain buyers or certain types of buyers, in much the same way one might investigate fair housing violations. Any property thought to be in violation will be reviewed, and the agent contacted. The policy is enforced through the same outreach methods used for other policy violations: letters of warning issued with a time period to allow for compliance. We follow all the same procedures for any other violation that is enforced by fines, including escalation of penalties for repeat violations.

 

Coming Soon and Office Exclusives:

What effect will this have on “Coming Soon” listings? The Coming Soon status is available while you are pre-marketing a property. Listings cannot be shown in the Coming Soon status. However, Days on Market will not accumulate in this status.  

How does this new policy deal with Office Exclusives and private listings? The policy allows for Office Exclusives, or private listings, on the condition that they are marketed through internal office networks, but not publicly to other agents (Bright subscribers) outside of their brokerage firm or publicly to consumers. This would be used, for example, for private sales and other situations where the seller has requested that their property not be listed in the MLS for privacy reasons.

What is the difference between Coming Soon and Temp Off? The Temporary Off-Market status is used for a listing that was Active, but the seller has requested that the agent suspend showings temporarily. During Temp Off no appointments are scheduled, even though the listing contract between the broker and the seller remains in effect. In contrast, a listing may only be entered as Coming Soon at the beginning of its marketing period. Once a listing has been Active, it cannot change back to Coming Soon. If the listing has at one time been Active, it should go to Temp Off. Like Temp Off, Coming Soon listings cannot have showings.

How long can a property be posted as Coming Soon before it goes live for showing? 21 days is the maximum for Coming Soon, unless a certificate of occupancy or similar permit is not in place, as in the circumstance of New Construction or major renovations. For New Construction and listings designated as Major Rehab, they can remain in the Coming Soon status for up to 2 years.

Are Brokers allowed to post Coming Soon on their websites which may exceed the 21-day rule? No, this is not permitted.

What is the extent to which we can advertise during the "Coming Soon" period? Listings may be advertised publicly in the Coming Soon status. This includes closed groups on social media, signage, and any other forms of public marketing.

How can I advertise a Coming Soon listing without entering it in Bright? You can advertise it within your brokerage firm or reach out to individuals on a one-to-one basis. You cannot advertise a property publicly without putting it into the MLS. You can certainly advertise that you specialize in a certain area, market, or style.

 

Public Marketing:

What is public marketing? Public marketing includes, but is not limited to, flyers displayed in windows, yard signs, digital marketing on public facing websites, brokerage website displays (including IDX and VOW), digital communications marketing (email blasts), multi-brokerage listing sharing networks, and applications available to the general public.

Here are some examples of discussions that are NOT considered public marketing:

  • Office meetings or discussions within your brokerage
  • One-on-one discussions with someone at a party
  • A phone call with a fellow agent

Here are some examples of public marketing:

  • Multi-brokerage sharing networks, including private Facebook groups
  • A sign or flyer with the purpose of marketing the property as For Sale or Coming Soon
  • Sending postcards or blast email to contacts advertising the property

Will there be a consideration of a longer time period for pre-marketing activities outside of the Coming Soon status? At this time there are no discussions to lengthen the time beyond one business day.

If I don't state the address, can I say "I have a Coming Soon in Ballston in April" on social media without penalty? If you are promoting a specific property, this is considered public advertising and would be subject to the policy. If you are generally speaking to your business - business is picking up in Ballston - this is not subject to the policy.

Can a seller advertise their house before the home is live on MLS? The Bright Off-MLS Policy pertains to our subscribers, not the general public. While the policy does not pertain to the general public, if they are publicly advertising a listing with your contact information or similar identifying information, you may still be held responsible. Especially if a showing comes out of that marketing, you may want to mark the listing as Active right away so all agents can show. Once you show the listing, it must be Active.

Can I send out an upcoming open house postcard to neighbors before it is in MLS? Those postcards are public marketing. Furthermore, if there is an open house it should be in the MLS as Active, because that is considered a showing. So if you're sending those postcards for an open house, the listing must be entered in the MLS within one business day of and it must be Active Sphere is a form of public advertising and follows the same guidelines.

Can we share upcoming listings by email to other agents and potential buyers? One-on-one emails or conversations are not part of the policy, but a blast email would be considered public marketing (as would a post on Facebook) if you doing a blast email to a number of agents who are NOT part of your brokerage firm. Marketing within your brokerage firm is not considered public advertising.

What happens when a listing expires - when do you have to remove signs and flyers/advertising? Once you no longer have a valid listing agreement, you may be subject to HOA rules, local or other regulations. We suggest you remove the marketing material as soon as possible for listings where a listing agreement has expired. Signs are allowed when a valid listing agreement is in place, which includes Coming Soon and Temporary off market. When there is a sign in the yard, that is public advertising and therefore it must be in the MLS. The sign may remain for a limited time after it has sold Bright does not determine how long that may be, however some local jurisdictions or HOA rules may apply.

Can I advertise under contract or sold off-market listings? You are allowed to market yourself using a listing you recently sold and settled as you are not marketing that property as for sale but using it to promote your capabilities as an agent. This policy concerns advertising off-market properties as for sale.

 

Potential Scenarios: 

I want to pre-market my listing to generate more interest. You can pre-market your listing, as long as the listing is entered into Bright in the Coming Soon status. In this status, Days on Market does not accumulate. 

My seller requests that I not list the property in the MLS. If the seller requests the listing not display in the MLS, you can submit a waiver, at which point you will not be allowed to publicly market the property. Under the new policy, any listing where the seller has decided to not market their property through the MLS is subject to the new Office Exclusive policy. Section 1.3 of the Bright Rules and Regulations discusses Waivers and Office Exclusives. Access the Bright Waiver here.

My seller requests that the listing not be sent to consumer websites.  If your seller requests that their property not be displayed on the internet, Bright does offer the field “Seller authorizes the listing on the internet”. This controls whether the listing is sent out to consumer websites through the Bright data feed. Please note: The listing will display in the MLS.

A listing agreement is signed today, but the property will not be marketed for two months due to needed work. If the property is not being marketed and the listing term has not yet begun, then the listing may remain off the MLS until the listing term begins.

A client signed a listing agreement before October 16, 2019. The new rule applies to all new listings beginning October 16, 2019. If an exempt-listing waiver was signed prior to October 16, 2019, that will remain applicable for the listing.

An agent asks other agents for feedback on preparing a listing – for instance, about the price or needed home renovations. The listing does not need to be entered into the MLS within one business day, as long as the communication with agents and brokers outside of your firm is on an individual basis and does not objectively constitute public marketing of the property. The rule is focused on whether a listing is being publicly marketed. Public marketing of the property and the listing in this instance could be if (a) there are photos, pricing, or descriptive information about the home that reflects public marketing, or (b) the invitation to the “broker open” event promotes the listing to brokers and agents outside of the listing brokerage to generate awareness that the property is on the market or is about to be on the market.

What if an agent is listing a property and also has an interest/equity in the property? Are Realtor-owned properties subject to this policy? If you have a listing agreement with your brokerage firm, then the policy does apply. If you are a realtor doing a FSBO or for rent by owner, it does not apply. If you are acting as a private citizen, then you can advertise the listing outside the MLS provided there are no references to the brokerage firm or brokerage firm's contact information.

If an agent has an investor, can that agent sell off-MLS property? If there is a listing contract in place for a property within Bright's footprint and the seller does not want the listing in the MLS, use the Waiver of Cooperation. You can still make an individual contact with that investor to look at and purchase the property. One-on-one communication does not count as public advertising of the property.

If a client wants to remove a listing from MLS for several months to reset DOM, can it stay on a company website with appropriate permissions? No, this is not permitted.

I have a seller who does not want their property in the MLS nor do they want to publicly advertise the listing, so I am taking the listing as an Office Exclusive. How many agents may I market to directly? Do I need to honor the request of an agent, not on my original contact list, to show the property? The listing agent may choose to reach out to agents or consumers on an individual basis, to market a listing.  In addition, they may let other agents in their brokerage know of the listing through a private intranet or other non-public mechanism.  So, there is no cap on the number of agents or consumers that you are allowed to market to. 

I do a considerable amount of bank-owned business, and occasionally, I receive an assignment that is an occupied asset where the occupant will not allow showings, but prospective buyer/investors can bid on the property through the bank’s website. Bright has always allowed no-showings. To be a no-showing listing, the listing remarks must indicate that the property cannot be shown because it is unsafe (i.e. condemned properties) or the occupant is not cooperating with showing the property as a tenant who is not allowing showings can create a tense or unsafe situation. If the listing is listed as a no-showing property, the listing needs to be updated before any showings are permitted to take place. 

I post about having listings in a certain neighborhood, but I don’t mention the specific address. Bright’s policies do not limit agent’s advertisement of their business generally. This policy is focused solely on publicly marketing a specific listing. If the intent of a communication is to publicly market a specific listing, then the listing must be in the MLS; if the intent is to promote the expertise and skill of an agent, then Bright’s policy does not apply.

I don’t know when a yard sign will be installed. They can give me up to a week window. If the agent has asked for a sign to be installed at the property and is not sure what day it will be installed, they should enter the listing into Bright within one business day of the soonest they believe they sign will be installed, or they may enter the listing as Coming Soon and change the listing to Active within one business day of the sign being installed.

I have a listing that will be entered as both Farm and Residential Sale. The property must be listed according to the applicable local zoning.  If it is zoned for both residential and agricultural (Farm), then the agent may list the property as Farm, Residential or both property types. Residential does count as part of the policy, so if the agent wants to sell the property as Residential, it must be listed.  However, if the owner only wants to sell as Farm, the policy doesn’t apply.

I own land, and am having some builders build on that land. Can I advertise what they are building on my website? It depends on what you're actually listing for sale. If you're listing it as Land with the builders' blueprints as examples of what types of improvement could be put there, then the policy does not apply as land-only sales are not part of the policy. If you're selling it as Residential - in other words, they are building something and the listing agreement includes the improvement, then it is subject to the policy and the property should be on the MLS as Coming Soon. It can remain in the Coming Soon status until a certificate of occupancy or equivalent is obtained. In that case, you are free to do all forms of public advertising. However, remember in the Coming Soon status there are no showings. When you want to show what they've built, then it must be Active so all agents have a chance to show it. 

Are off-MLS listing agents required to pay selling agents? An offer of compensation is a requirement and part of eligibility for listing entry into the MLS. If someone is a real estate practitioner who does not participate in the MLS, they are under no obligation to offer compensation or cooperation. However, if a listing agreement with the seller includes terms of cooperation and compensation, that is what governs the compensation on the sale.

Can I enter a sale in Bright after it has closed on a FSBO or off-market sale? Once the property has settled, you can enter it as a comparable listing if you were representing the buyer in the transaction.

 

If you have specific questions or scenarios that are not listed here, our Accuracy & Policy team is available to help answer them.

You can contact them Monday through Friday at (301) 838-7140 or OFFMLSLISTINGS@BrightMLS.com

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