WASHINGTON, D.C. — Property listings information formerly called “data” is now defined as “content,” according to a change in multiple listing service policy adopted by National Association of Realtors directors at a Saturday meeting. That content can include “photos, images, graphics, audio and video recordings, virtual tours, drawings, descriptions, remarks, narratives, pricing information, and other details or information related to listed property.”
Listing brokers own the listing agreement, and, “prior to submitting a listing to the MLS, the listing broker should own, or have the authority to cause all listing content … to be published in the MLS,” according to the amended policy, which is scheduled to take effect in January 2007, upon publication of the association’s 2007 “Handbook on Multiple Listing Policy.”
The policy touches on a controversial topic for the real estate industry: ownership and control of property listings information. Legal and industry experts have debated on which aspects of a property listing are the industry’s private intellectual property versus information that should be shared with the public, and whether the industry acts in the best interest of consumers when it seeks to block access to property information.
Issues related to the sharing and ownership of real estate information online are central to an antitrust lawsuit filed last year by the U.S. Department of Justice against the National Association of Realtors.
The policy change adopted Saturday by the National Association of Realtors’ board of directors states that MLS participants “cannot be required to transfer any rights (including intellectual property rights) in their listings or listing content to MLS to obtain or maintain participatory rights in the MLS.” An intent of the policy change, according to information provided by the association’s Multiple Listing Issues and Policies Committee, is to “caution that Realtors should own or have authority to all elements of listing content to be published in MLS.”
The board also approved an updated description of various types of listing agreements. The changes recognize that agents can act as an agent “or as the legally recognized non-agency representative” in an exclusive-right-to-sell, exclusive-agency or open listing. In an exclusive right-to-sell listing, the seller can agree to pay a commission to the listing broker regardless of whether the property is sold through the efforts of the listing broker, unless the seller sells to an individual or entity that the seller has named as exemptions in the listing agreement.
Under an exclusive agency listing agreement, the seller is not obligated to pay a commission to the listing broker if the property is sold solely through the efforts of the seller, and with an open listing agreement the seller pays a commission only if the property is sold through the efforts of the listing broker.
Laurie Janik, general counsel for the trade group, announced during the trade group’s annual legislative conference last week that a group of association-affiliated MLSs are under investigation by federal authorities for policies relating to exclusive agency listings. Specifically, the federal government is examining MLS policies that prevent the submission of exclusive agency listings to public property-search Web sites such as Realtor.com, she said.
Some MLSs maintain that because this type of property listing can function as a for-sale-by-owner listing, the MLS should not be in the business of promoting these listings to the public. Opponents of such policies have argued that these listings should not be singled out by MLSs, as MLS participants can potentially earn a commission by working to sell exclusive agency listings to their buyer clients.
NAR’s board of directors also approved several changes to the association’s operating standards for members as recommended by a Professional Standards Committee, such as language that specifically extends the trade group’s Code of Ethics to apply to “all real estate-related activities and transactions whether conducted in person, electronically or through any other means.”
The changes mandate that Realtors must disclose the name of their firm “in a reasonable and readily apparent manner” in all advertisements of listed property that appear “in any medium,” whether it be in print, radio, television or the Internet.
Realtors and non-member licensees affiliated with a Realtor’s firm must “disclose the firm’s name and that Realtor’s or non-member licensee’s state(s) of licensure in a reasonable and readily apparent manner,” states another change that the board approved.
Another policy change limits the dollar amount of awards that result from disputes relating to procuring cause, which is a determination of which real estate professional began a chain of events with a buyer that led that ultimately led that buyer to purchase a home. The policy change provides that, in cases of arbitration, the penalty amount imposed is “limited to the amount paid to the (respondent in a procuring cause dispute) by the listing broker at any amount credited or paid to a party to the transaction at the direction of the respondent.”
The association’s budget for 2007, approved at the meeting, projects that Realtor membership will sink slightly, from about 1.3 million to about 1.2 million, in the next budget year.
Members of the trade group’s board of directors approved a new set of officers for 2007, including Pat Vredevoogd Combs of Grand Rapids, Mich., as president; Richard F. Gaylord of Long Beach, Calif., as president-elect; Charles McMillan of Irving, Texas, as first vice president; and Bruce Wolf of Englewood, Colo., as treasurer. And candidates for 2008 officer positions include Gaylord as president; McMillan as president-elect; Vicki Cox Golder of Tucson, Ariz., as first vice president; and Jim Helsel of Lemoyne, Pa., as treasurer.
The association will hold its annual conference this year in November in New Orleans. While NAR had planned to hold its 2008 annual conference in Chicago – the city where the association has its headquarters – problems with a hotel contract there led association leaders to change that venue to Las Vegas. The association will pay about $150,000 to other hotels that it had tentative commitments with in Chicago, not because it is contractually obligated to but because it wants to “maintain goodwill,” Janik explained during the Board of Directors meeting.
Upon a recommendation from a member in Florida, NAR’s board voted to elevate natural disaster insurance for homeowners as a key legislative issue for the association to address. Formerly, the limited availability and high cost of homeowners’ insurance in some parts of the nation was considered a lesser priority for the trade group than other top issues, such as the passage of legislation relating to group health plans for small businesses and the banning of banks from the business of real estate brokerage.
