NAR guidance clarifies office exclusive listings, MLS rules

NAR emphasized that the decision to use an office-exclusive listing rests entirely with the seller and must align with their best interests, which may include health, safety, privacy, or other factors that supersede the benefits of broad market exposure. The guidance also addresses pre-marketing options like "Coming Soon" statuses and delayed marketing exempt listings (DMELs), stating they must operate within MLS rules, including submission requirements and deadlines, and follow the seller's informed instructions.

Unlike true office exclusives, many pre-marketing statuses are considered on-market or partially on-market. NAR noted that if a listing is filed with the MLS and accessible to other participants, the brokerage is in compliance, even with limited or delayed exposure. The guidance also highlighted that some states, such as Wisconsin, Washington, and Connecticut, have specific laws affecting pre-marketing practices, advising brokers to consult state law and licensing authorities.

Before utilizing an office-exclusive or pre-marketing option, listing brokers are required to explain all options to the seller, detailing how each aligns with their goals and best interests. They must secure the seller's informed instructions and complete necessary disclosures, acknowledging the seller's understanding of the MLS benefits they are waiving or delaying. The Clear Cooperation Policy mandates that MLS participants submit a listing to the MLS within one business day of public marketing. For office exclusives, submission is required if the listing is publicly marketed or if the broker communicates it to an outside broker in a non-one-to-one manner. Even in one-to-one broker-to-broker communication, a disclosure is needed to prevent the receiving broker from marketing or showing the property.

NAR also restated its view of the MLS as a pro-competitive, pro-consumer system. Regarding virtual office websites (VOWs), NAR stated that all active listings must be available through a VOW data feed to support cooperation, fair housing, and transparency, following discussions with the U.S. Department of Justice. MLSs have the discretion to define 'active' listings, but NAR stressed that statuses must accurately reflect availability. Local MLSs are responsible for enforcing their rules, including Clear Cooperation, and for evaluating potential violations and sanctions.