Q: What is Clear Cooperation? Who approved it and why?
A: Real estate practitioners from all over the U.S. asked the National Association of Realtors (NAR) to consider a policy that would reinforce the benefits of broker cooperation. After discussion in a number of committees including NAR’s MLS Technology and Emerging Issues Advisory Board (comprised of brokers and MLS executives), the Clear Cooperation proposal was introduced for discussion and consideration. It was ultimately approved by NAR’s Board of Directors at the 2019 NAR Annual Meeting in San Francisco. Because Clear Cooperation is a national policy, adoption by Realtor Association MLS's is mandated to ensure consistent standards.
The Intent of NAR's Clear Cooperation Policy
Clear Cooperation Policy 8.0 went into effect May 1, 2020.
Clear Cooperation intends to reinforce cooperation among competing brokers for those who choose to participate in MLS's for the benefit of sellers and buyers by eliminating the practice of taking, marketing, and selling pocket listings. Pocket listings generally run counter to the broad exposure of listings, to maximizing the number of received offers, to cooperation among all broker participants in the MLS, and to maximizing exposure of the listing to all potential buyer demographics.
Q:Can I advertise my listing while in Coming Soon?
A: Yes. All forms of public marketing are permitted such as yard signs, social media posts, email, and flyers. SHOWINGS, INCLUDING VIRTUAL AND THOSE BY THE LISTING AGENT, ARE NOT PERMITTED WHILE IN COMING SOON. A listing must be moved to an active status in order to be shown to prospective buyers.
Q:Can I move a listing from Coming Soon to Active or Under Contract-Showing to hold a showing, and then move it back to Coming Soon?
A: Not within five days. Changing a Coming Soon/Hold listing to Active or Under Contract-Showing and back to Coming Soon/Hold within 5 days is not permitted and can result in a fine (see Realtracs Rules, Exhibit B, Infraction 5).
Q:Can you make a "sight unseen' offer on a Coming Soon listing that is contingent upon the home being shown once it is available for showing?
A: Yes. An offer can be placed on a listing in Coming Soon; however, it cannot be shown while in Coming Soon. A contingency can be included in the offer for the home being shown once it is available for showing
Q:How does this affect new construction?
A: Clear Cooperation was implemented to primarily address concerns with listings available for sale with exclusive listing contracts that are required to be listed in the MLS. There are some property types excluded from this including new construction with multiple properties under a blanket listing agreement.
Q:What if a listing enters the MLS in Under Contract – Not Showing status?
A: Whether this is a violation or not depends on the circumstances around the listing agreement. There are many situations (especially in this seller’s market) where a listing goes under contract immediately. The crux of the question and discovery would surround the order of events: Was a listing agreement signed and publicly advertised BEFORE it was submitted to MLS? Was it under contract within the 48-hour submission timeframe? And, conversely: Was a buyer identified and contracted with prior to the listing agreement being signed or within the 48-hour timeframe?
Q:Can you respond to someone who posted about a buyer need if you will have a listing signed next week?
A: Yes. Because there has not been a listing agreement signed yet, Clear Cooperation is not in effect.
Q:Can the seller exempt the listing from the MLS by putting it in writing?
A: Yes. This is an Exempt Listing. The listing broker can withhold the listing from the MLS as long as the following stipulations are met:
The seller(s), listing broker, and listing agent must sign the Seller’s Waiver of Broker Cooperation and Public Advertising and email the form to email@example.com
No public marketing (as defined below) outside of the listing agent’s brokerage. Word of mouth advertising and singular showings are permitted.
If public marketing takes place the listing must be entered in the MLS within 48 hours of such marketing.
If a listing agent has an Exempt Listing from the MLS that is being publicly marketed there are two options on the day Clear Cooperation goes into effect:
Within 48 hours of May 1, list the property in MLS to continue marketing.
Remove all existing instances of public marketing and have the Seller’s Waiver of Broker Cooperation and Public Advertising completed and signed by the seller(s), listing broker, and listing agent, and then email the form to firstname.lastname@example.org.
Q:What is defined as public marketing?
A: The easiest way to define public marketing is to share Realtracs rule 1.14:
1.14 Public Marketing.
Marketing a listing through flyers displayed in windows, yard signs, digital marketing on public-facing websites, brokerage website displays (including IDX and VOW), general showings, broker and public open houses, digital marketing such as email campaigns and social media applications, and other similar marketing and advertising activities.
Q:I understand that I cannot advertise to the public with an exempt listing. Are other agents and brokers outside of my company considered the public as well?
A: Yes. Any individual or group of individuals outside of your brokerage, including an agent, broker, or brokerage staff, is considered to be the public for the purposes of enforcing exempt listings.
Q:What if the Buyer wants privacy?
A: Realtracs has a solution for seller privacy which has been around for several years. When entering a listing in the MLS select “No” for the Internet List selection. This will keep the listing from being sent to all advertising, franchise, Realtracs.com, and IDX websites. The listing will only be available for viewing by other Realtracs subscribers in Realtracs.net. If you or your seller wish to still withhold the listing from MLS, the listing becomes an Exempt Listing and must follow the guidelines above and as defined in Realtracs Rule 2.9.
Q:How do you report a violation?
A: Violations can be reported to email@example.com. The email should include the property address, the listing agent and office, and the reason why it is believed there was a listing being withheld from MLS that was publicly advertised.
Q:Can I advertise before I have a listing agreement?
A: No. Advertising listings without a valid listing agreement is a violation of the Tennessee Real Estate Commission’s rules on advertising.
Q:Can I show my home in Coming Soon status?
A: No. However, public Marketing (other than showings) is permitted while a listing is Coming Soon. Please note, the prohibition of showings in Coming Soon also includes users in the same brokerage as the listing agent.
Q:Can a buyer make an offer on a Coming Soon listing without seeing the property?
A: Of course. A sight-unseen offer is not uncommon, especially in multi-offer or competitive situations. However, showings are not permitted while in Coming Soon status.
Q:When am I required to enter a listing into the MLS?
A: Listings are required to be entered within 48 hours of the date shown on your signed listing agreement. Also, if your listing is withheld from MLS (Exempt Listing) the listing must be entered in MLS within 48 hours of public marketing.
Q:Can I still market my listing in Coming soon groups?
A: You are free to do whatever business practice works for you. However, as a condition of membership with Realtracs, if you have an executed listing agreement and are marketing the property in “coming soon” groups, it must be submitted to MLS
Q:Can I talk to an agent about an exempt listing?
A: Realtors find homes for buyers and meet needs every day. Word-of-mouth marketing and matching homes to the needs of buyers is not a violation of Clear Cooperation and will continue as normal.
Brokers and agents have 48 hours to enter a listing into the MLS, as has always been the case after signing a listing agreement. However, there are now some additional items to consider. If your seller has legitimate privacy concerns such as celebrity status, a divorce, potentially dangerous domestic situation, or other similar scenarios, the listing is NOT required to be entered into the MLS as long as the Seller's Waiver of Cooperation and Public Marketing Form is submitted to Realtracs within 48 hours of signing your listing agreement.
The Seller's Waiver of Cooperation and Public Marketing Form, requires the signature of the seller(s), listing broker, and listing agent, and should be emailed to firstname.lastname@example.org. The listing agent can market the listing via word of mouth and have singular showings to match a buyer’s need with the client’s property. Public marketing of the property is NOT permitted. Public marketing includes yard signs, social media, IDX/VOW displays, email blasts, any public website display, distributed or posted flyers, and general showings or broker/public open houses.
If there are no privacy concerns for the seller, submit the listing to MLS with the status of Coming Soon OR Active within 48 hours of the signed listing agreement or any public marketing and market your listing like you usually would. Remember, if the property is shown at any time, it cannot be entered in the MLS as Coming Soon, and showings are never permitted while in Coming Soon status.
Some things to remember:
Make sure a listing agreement in place and signed by the seller(s) before entering the listing into MLS or submitting the Seller's Waiver of Cooperation and Public Marketing Form (this is a TREC requirement).
Within 48 hours of signing the listing agreement, all properties must either, A) be entered into the MLS, or B) have a signed Seller's Waiver of Cooperation and Public Marketing Form submitted to email@example.com (Exempt only if not publicly marketed).
If the property IS shown it cannot be entered as a Coming Soon listing.
No showings in Coming Soon status – move it to active status if showings are held. Changing a Coming Soon listing to Active or Under Contract-Showing and back to Coming Soon within 5 days will trigger a fine (see the fine table below).
The Seller's Waiver of Cooperation and Public Marketing Formcan be found [here].
Rule Changes Made to Address Clear Cooperation, Public Marketing, and Exempt Listings
1) Definition of Public Marketing
1.14 Public Marketing. Marketing a listing through flyers displayed in windows, yard signs, digital marketing on public-facing websites, brokerage website displays (including IDX and VOW), general showings, broker and public open houses, digital marketing such as email campaigns and social media applications, and other similar marketing and advertising activities.
2) Modify Section 2.2 Clear Cooperation
b) Showings are considered Public Marketing and, once a listing is shown, it must be submitted in accordance with this Section 2.2 and may not be entered with a status of Coming Soon. The exception to this rule is when an Exempt Listing is shown, on a one-to-one basis, to prospective buyers in a manner that protects the Seller’s privacy concerns.
3) Modify Section 2.9 Exempt Listings
2.9 Exempt Listings. If the seller refuses to permit the listing to be disseminated by RealTracs, Inc., the listing Participant may then take the listing (office exclusive) and such listing will be filed with RealTracs, Inc. The restriction by the seller(s) against disseminating the listing via RealTracs, Inc. must be (i) substantiated in writing, (ii) signed by the seller(s), and (iii) acknowledge that exempt listings may not be publicly marketed. RealTracs, Inc. provides the “Sellers Waiver of Cooperation via MLS and Marketing” form for Participant’s use. The seller-authorized restriction must be sent to Realtracs via email to firstname.lastname@example.org within 48 hours of the execution of the listing agreement. This seller authorized restriction, together with the exclusive listing agreement, shall be maintained in the brokerage office records for the listing. The exempt listing shall not be disseminated through RealTracs, Inc. to the Participants. If the exempt listing is Publicly Marketed, then MLS Participants must submit the exempt listing to RealTracs within the lesser of one (1) business day or forty-eight (48) hours of the Public Marketing. See Section 2.2, Clear Cooperation. A Participant’s use of “Exempt Listings” to circumvent cooperation with other Participants is prohibited.
4) Modify Section 2.10 Status Upon Entry: Active; Coming Soon/Hold
a) New listings must be submitted to RealTracs, Inc. with a status of Active and all listings shall be available for showing until a Binding Sales Contract has been executed. In the event the seller instructs the listing broker, in writing, that the listing cannot be shown for a specific period of time, the listing status must be designated Coming Soon/Hold with a specific “available for showing” date. When a property is listed as Coming Soon/Hold, (i) all showings are prohibited, including showings by listing agent or agents from listing agent’s firm; (ii) Public Marketing (except for showings) is permitted. A listing entered as Coming Soon/Hold may not be changed to Active or Under Contract-Showing status and changed back to Coming Soon/Hold within a five day period.
5) Added to Exhibit B: Infraction & Fines Schedule
Violation Occurrences Apply to:
Failure to submit a new listing OR, for an Exempt Listing, a "Sellers Waiver of Broker Cooperation via MLS and Public marketing" form to MLS within 48 hours
Office or Listing Agent
$250 - 1st Violation
$500 - 2nd Violation
$1,000 - 3rd Violation
Changing a Coming Soon/Hold listing to Active or Under Contract- Showing and back to Coming Soon/Hold within 5 days