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When the National Association of Realtors settled a slew of commission suits and later implemented new rules this year, it might have seemed like fights over rules in real estate were finally moving into the rearview mirror.
But that’s not what happened. Instead, even as commission suits have receded as headline-grabbers a new issue has emerged as real estate’s cause célèbre: NAR’s Clear Cooperation Policy.
WHAT INMAN READERS SAY ABOUT CLEAR COOPERATION
Clear Cooperation is a rule NAR approved in 2019 that requires agents to put their listings into their NAR-affiliated multiple listing service within one day of marketing those listings. The rule also includes an exception for “office exclusives,” meaning brokerages are allowed to privately promote listings internally to their own agents.
Clear Cooperation has been controversial from the get-go, with big names lining up both for and against it. The arguments are too numerous to entirely summarize, but put briefly the proponents of Clear Cooperation have argued that it supports fair housing, it benefits sellers by connecting them to the largest-possible pool of buyers, and it gives MLSs and their users clearer data about the market, among other things.
Alternatively, opponents of Clear Cooperation have argued that it limits the freedom of sellers and their agents to market properties as they see fit, that it violates property owners’ right to privacy, and that the rule is currently the focus of a Department of Justice investigation. Others have contested, among other things, that Clear Cooperation is simply ineffective or in some cases having the opposite of its intended effects.
Howard “Hoby” Hanna III
There are also different explanations as to why Clear Cooperation caught fire at this particular moment. One of those explanations is that tussling over the rule is a direct outgrowth over the legal fighting over commissions. Howard Hanna CEO Hoby Hanna — who favors eliminating the rule (more on that below) — made that argument, telling Inman that plaintiffs in commission suits have specifically cited Clear Cooperation as an example of industry collusion.
“We believe Clear Cooperation is an example of what got us into trouble,” Hanna said.
Simultaneously, NAR’s settlement in various commission suits did not cover the largest brokerages, forcing companies to work out their own payments and resolutions “with a target on their backs,” Hanna said. The result, he argued, is that the recent history of litigation and the prospect of future lawsuits is currently creating pressure, particularly from larger brokerages, to change or eliminate Clear Cooperation.
Chris Heller — president of OJO and a supporter of Clear Cooperation — similarly sees current pressure on Clear Cooperation as connected to the commission suits, though he framed the push as more opportunistic on the part of bigger brokerages.
Chris Heller, OJO
“You have people saying, ‘hey this is a good time.’” Heller said. “There’s a lot of upheaval, a lot of uncertainty, a lot of change. When everything’s good, when everything’s smooth, it’s hard to make a big change. But when there’s upheaval that’s the time to go in and try to change something.”
But there may also be other factors driving the current push. Collabra Technology CEO Russ Cofano — who said he does not have a position one way or another on Clear Cooperation — told Inman that at a deeper level brokerage profit margins may be a factor. At issue is the rise of high-producing rockstar agents and teams, which have managed to tilt commission splits in their favor. With brokerages getting a smaller piece of the financial pie they’re facing pressure to find other ways to buttress their bottom line.
“It’s not that they’re not making money, but that the level of profitability and the margins they’re making continue to go in the wrong direction, and that’s a problem for the industry,” Cofano said of today’s brokerages. “These big firms understand that the easiest level to pull is to keep more transactions.”
Russ Cofano
Cofano’s comments don’t necessarily contradict those of Hanna or Heller, but rather point to the possibility of additional, deeper structural issues at play.
“It’s all based on an economic picture that does not look super sunny for brokerages,” Cofano added.
The truth of the picture, then, is highly complex and most members of the industry do have a dog in the fight. In other words, many industry players are making altruistic or principled arguments for or against Clear Cooperation — and indeed may sincerely believe those arguments — but also stand to win or lose depending on which way things go.
What’s abundantly obvious now though — as NAR continues to weigh the issue — is that the battle over Clear Cooperation is not abating any time soon.
Where major industry players stand
Inman reached out to dozens of brokerages, prominent individuals, and multiple listing services asking where they currently stand on the issue. Responses to those inquiries, along with past reports on the topic, are listed below. Organizations have been placed into categories for the benefit of this piece’s readers, but it’s worth noting that even within the different camps there is significant variation in opinion, and in how assertive organizations have been in expressing their views.
Of the dozens of organizations Inman reached out to, a number did not respond, while others declined to comment for a variety of reasons. Inman has left out those whose positions have not been made public.
This list will be updated as Inman receives additional comments.
Critics of Clear Cooperation
Compass: Compass and its CEO Robert Reffkin have been the most publicly vocal proponents for changing Clear Cooperation. Reffkin’s arguments include that Clear Cooperation leads agents into ethics code violations and that it opens the door for future lawsuits, among other things. Compass has also promised assistance to MLSs that don’t enforce the rule, and last week Reffkin said his firm is among “nearly 100 brokerages” that want Clear Cooperation removed. Reffkin has pushed for ditching Clear Cooperation entirely but also recently said he could live with something like Anywhere’s proposed loosening of the rule.
Howard Hanna: In his conversation with Inman, Hanna said both his own position and that of his company has been to oppose Clear Cooperation “since its inception.” Hanna believes the rule stifles both competition and innovation. In an effort to reverse the rule he sent letters to dozens of MLSs and NAR about a month ago pushing for change.
“If Clear Cooperations stays,” Hanna also said, “we’ll start seeing a lot of brokers leave MLSs.”
Hanna also argued that NAR should be an advocacy organization, not a regulatory body.
“We firmly believe [Clear Cooperation] should be reversed,” he added.
The Agency: The Agency CEO Mauricio Umansky has been a critic of Clear Cooperation since the very beginning. But he also recently joined the vanguard in the push to end the rule when he threatened to revive a lawsuit against NAR. The lawsuit actually came from The PLS.com — an acronym for “Pocket Listing Service” — at which Umansky is a founding partner. When he threatened to refile the suit, Umansky said that off market listings “should not be regulated by the National Association of Realtors or the MLSs.”
A NAR rival that Umansky co-founded has also launched a petition to end Clear Cooperation.
Unlock MLS: Unlock MLS is the Austin Board of Realtors multiple listing service and told Inman in an email that from the beginning it has had “serious concerns” about Clear Cooperation.
“Unlock MLS has repeatedly restated our subscriber’s concerns directly to NAR,” Unlock continued. “However, despite these efforts, the Clear Cooperation Policy remains unchanged. Unlock MLS has continued to administer the policy in a workable manner for our local market, ensuring it serves the interests of our subscribers and the clients they serve as much as is possible under this policy.”
“Given much has changed since the adoption of the policy, not the least of which is the market itself in addition to the many business practice changes associated with the NAR settlement, it’s appropriate to deeply consider the value of the current policy and to transparently discuss if local MLSs are in the best position to make decisions on these types of policies without national mandates,” Unlock also said.
Gary Gold: A prominent Los Angeles broker with Coldwell Banker, Gary told told Inman that he is “passionate about not liking” Clear Cooperation. Though he said he understands the fair housing implications, he said that in his market it does not work as intended. Gold added that Clear Cooperation “has the exact same DNA as what we were sued for on commissions,” and said that he consequently expects NAR to either modify or eliminate it.
“I think it’s a really bad idea to not give consumers what they want,” he said, “because someone else will do it.”
Somewhere in the middle
Anywhere: Anywhere has not publicly spoken out about Clear Cooperation, but documents Inman obtained last week show that the company has pressured NAR to make changes. The documents showed that NAR specifically wants greater “consumer choice” and would like to give agents more than a single day after marketing begins before they have put listings into the MLS.
@properties Christie’s International Real Estate: Christie’s was acquired by Chicago based @properties in 2021, and in an email to Inman said that the company consequently understands “the issue both from the point of a view of a small start-up brokerage and from the perspective of a large brokerage with leading market share in a marketplace.”
“Generally, we support the concept of Clear Cooperation but also understand there are situations where a client’s wants or needs can diverge from the policy, and there should be more leeway in addressing these situations,” the company continued. “We see no reason why the Realtor community cannot work to refine the policy in such a way that protects consumers, safeguards fair housing, creates open competition and addresses the need for privacy and discretion that clients want and deserve.”
MLS PIN: In an email to Inman, MLS PIN said simply that it “has never adopted the Clear Cooperation Policy.”
Side: Side recently told Inman it does not have a position on Clear Cooperation. But the company also just announced that it is building a private, internal listing network for its agents. That suggests the company has come to similar conclusions regarding private listings as Clear Cooperation critics such as Compass.
Supporters (generally, more or less) of Clear Cooperation
Ben Caballero: In an email, Ben Caballero — the top-selling agent in the U.S. — told Inman he has “no issue with NAR’s Clear Cooperation Policy. Objections to it can be overcome and it prevents the temptation for listing agents to practice questionable behaviors.”
Red Oak: The Bay Area’s Red Oak Realty, led by well-known broker Vanessa Bergmark, expressed support for Clear Cooperation’s goals, even suggesting that “company exclusives are not necessarily in the best interest for consumers and the Clear Cooperation policy should be removed as an MLS rule.”
“On the surface, NAR’s Clear Cooperation policy maximizes exposure for sellers’ listings and makes it easier for buyers to find properties in a central location,” the company told Inman. “However, it can inadvertently lead to larger real estate companies hiding office exclusives for their own benefit, limiting transparency and ease of access for buyers.”
Redfin: Redfin and its CEO Glenn Kelman have long publicly supported Clear Cooperation, and Kelman reiterated that position last month in a blog post titled “don’t end Clear Cooperation.” In the post, Kelman argued that public listings create an “open, fair market” and that private listings put “the broker first and the customer second.”
North Texas Real Estate Information Systems (NTREIS): In an email to Inman, NTREIS said it “supports transparency in the marketplace,” but indicated it doesn’t have a position on current efforts to change the policy.
“Listing on an MLS system provides the broadest exposure to a property, ensuring the best market price for the seller and ensuring that all buyers have access to all potential matches,” NTREIS said in the email. “The MLS rules have always included a requirement that participants enter all listings with exceptions for seller privacy concerns. The Clear Cooperation rule provided clear reporting and penalties for violations and added a marketing restriction to what was already in the policy. It is reasonable to restrict marketing if there is a privacy concern. As an organization, we have not weighed in on the conversation about possible changes to the rules but are monitoring the input from brokers as well as our shareholder organizations.”
eXp Realty: At an industry event last month, eXp Realty CEO Leo Pareja pushed back against efforts to jettison Clear Cooperation, saying that “I fundamentally believe in organized real estate and how it functions in North America.” When Inman reached out to eXp about the comments, the company provided a statement from Holly Mabery, senior vice president of broker operations, who said “a centralized platform like the MLS” will ensure “a comprehensive and robust marketplace.”
Stephen Brobeck: Consumer Federation of America senior fellow Stephen Brobeck has been a vocal proponent of Clear Cooperation and told Inman last month that “any effort by industry groups to broadly restrict consumer access to current listings is anti-consumer.”
Realtor.com: Portal and Move Inc. subsidiary Realtor.com told Inman “we value transparency in the market and believe that listing visibility creates fair and equitable housing opportunities for all, encourages independent buyer agency, and enables sellers to attract competitive offers and maximize their property’s value.”
“MLSs are central to this process, by ensuring that listings are broadly distributed to buyers at no cost to sellers,” the company continued in an email. “As discussions about potential changes to industry rules unfold, we believe transparency and the encouragement of independent buyer agency should remain foundational considerations to any policy.”
Chris Heller: Heller said that he believes Clear Cooperation is the most “efficient and effective way for things to work. It’s the best system for consumers.” He also contrasted the American real estate market with those in other countries, saying that overseas markets are inefficient and ineffective — and argued that ending Clear Cooperation could push the U.S. in the direction of other nations.
“That’s what everyone around the world wants, what we have,” he added. “And now we’re talking about ripping it apart.”
James Dwiggins: The CEO of franchisor NextHome, Dwiggins is among the most outspoken commentators on industry rules and regulations. Asked about Clear Cooperation, he pointed Inman to a forthcoming opinion piece he is writing wherein he argues that the push to end the rule is not about consumers. He also believes it “would ultimately take the industry backwards.”
“The real agenda here is about keeping listings off market to generate more internal buyer leads, and trying to double end the deals, thereby increasing company profit and in some cases stock price,” Dwiggins argued.
Anthony Lamacchia: The broker and CEO of Lamacchia Companies, Anthony Lamacchia also hosts a podcast about real estate where he discussed Clear Cooperation last week. During the podcast, he said ending Clear Cooperation would make the U.S. more like Europe. He also expressed the belief that Clear Cooperation benefits consumers.
Lamacchia added that “I am in support of keeping” the Clear Cooperation Policy.
Abio Properties: Cameron Platt, CEO of Bay Area brokerage Abio Properties, told Inman that “as much as sunlight is the best disinfectant, I believe that an open, honest and transparent method of advertising property listings to the widest possible audience is the single best way [to] command a market price.”
“In my experience,” he continued, “I can’t recall any instance where restricting information about or access to a property listing has been in the best financial interest of the seller.”
Bright MLS: East Coast-based Bright MLS has long been a vocal proponent of Clear Cooperation. In an email to Inman, Vice President Rene Galicia said that “Bright’s position remains that restricting access to property information opens the door to discrimination based on who you are, where you’re from, and who you know.”
“Consumers working with a real estate agent to promote their listing on the MLS helps to create an open, clear, and competitive housing marketplace that gives everyone a fair shot at finding a place to call home — and sellers the best shot at getting the best price,” Galicia continued in an email. “We are concerned that pocket listings/office exclusives do not place a home seller client at the forefront, and when done as a regular business practice, and not an exception, can place the brokerage’s interests in generating leads above the client’s financial interests.”
Email Jim Dalrymple II
