This Issues Briefing Paper is for Study only and has not been approved by the MLS/Computer and Business Technology Committee, Executive Committee, or the Board of Directors.
INTRODUCTION:
This item addresses NAR’s recent directive regarding MLS tracking of price change and days on market information.
DISCUSSION:
In response to concerns expressed by the Department of Justice in its ongoing monitoring of VOW policy, NAR has issued policy statements clarifying that MLS fields tracking days on market and price change information should not be treated as confidential or be prohibited from display when they are otherwise made available to participants and subscribers. NAR policy provides that an MLS is not required to track these items, but if it does, it is required to classify them, as well as any information from which they may be determined (such as the current list date or prior list and expiration dates) as “non-confidential.” Along this line, an MLS may not prohibit participants from making such information available to clients or customers whether on in-office “client copy” print-outs or through VOWs.
Advertising displays of these fields, however, do not necessarily have to be treated as non-confidential. An MLS has discretion whether to treat advertising uses of these fields as confidential. Advertising uses would be through IDX display or by hard copy flyers or other similar means. The rationale for treating advertising uses differently is that the DOJ’s instruction is incumbent on the VOW world (i.e. brokerage activity) but not the IDX world (i.e. advertising). Some MLSs may wish to prohibit display of the fields in IDX or other advertising, while others believe allowing participants and subscribers to display such fields on their IDX sites better enable them to compete with the big 3rd party syndication sites like REALTOR.com, Trulia, etc that don’t have such restrictions imposed on their conduct.
NAR’s policy is set forth below:
Price Change Information (Policy Statement 7.95)
MLSs are not required to track or report price change information other than the most recent increase or decrease in the price of current listings. If such information (either with respect to a current listing or to prior listings of that property) is tracked by an MLS and made available to participants and subscribers, neither it nor any information from which it may be determined shall be classified as confidential nor may participants be prohibited from making such information available to clients and customers pursuant to the same rules governing dissemination of other non-confidential data fields. Classification as non-confidential permits inclusion of such information in advertisements, including IDX display, of other participants' listings as a matter of local option. (Adopted 5/10, Amended 5/11) M
Days/Time on Market Information (Policy Statement 7.96)
MLSs are not required to track or report days/time on market information (i.e., the length of time a property has been listed for sale pursuant to a current listing agreement or prior listing agreements, whether with the same or different listing brokers or firms). If such information is tracked by an MLS and made available to participants and subscribers, neither it nor any information from which it may be determined (such as the current list date, or prior list and expiration dates) shall be classified as confidential, nor may participants be prohibited from making such information available to clients or customers pursuant to the same rules governing dissemination of other non-confidential data fields. Classification as non-confidential permits inclusion of such information in advertisements, including IDX display, of other participants' listings as a matter of local option. (Adopted 5/10, Amended 5/11) M
As stated at the outset, these issues have arisen as a result of DOJ monitoring. Thus, the most important take-away from this paper is that MLSs must make sure their conduct and policies comport with NAR requirements that price change and days on market information fields not be treated as confidential for brokerage operational purposes and that participants be allowed to provide price change and time on market information to client and customers. Compliance may be best implemented at the systemic level in how MLS fields are “tagged” on the system. As such, there is no mandatory MLS rule that NAR is requiring, however, compliance with the policy is not optional.
That being said, should the Committee wish to incorporate the policy directives into the C.A.R. MLS Rules, revisions are proposed below. (Note, since inclusion of the price change and time on market information in advertising is at the discretion of the MLS, the proposal below leaves the option open for the Model, but a local MLS may want to decide the matter for itself and adjust the language accordingly.) The proposed additional language is set forth in red and underlined below:
PROPOSED MLS RULE REVISION:
7.8 Change of Listing Information. Listing brokers shall input any change in listing information, including the listed price or other change in the original listing agreement, to the MLS within 2 days after the authorized change is received by the listing broker. By inputting such changes to the MLS, the listing broker represents that the listing agreement has been modified in writing to reflect such change or that the listing broker has obtained other legally sufficient written authorization to make such change. MLS tracking of price change information, if any, shall be classified as “non-confidential” for the purpose of allowing Participants and Subscribers to make such information available to clients or customers pursuant to Sections 12.15.1 (Client Copies) and 12.19 (VOWs). [Whether display of this field is permitted for advertising purposes, including IDX display set forth in Section 12.16, is at the discretion of the MLS.]
7.26 Days on Market/Cumulative Days on Market Calculation. The calculation of Days on Market (DOM) is based on the listing number assigned to the property by the MLS and is tied to the brokerage firm holding the listing. The calculation of Cumulative Days on Market (CDOM) is based on the Assessor’s Parcel Number (“APN”) until the earlier of a change of ownership or the property is not available for sale and no listing agreement is in effect for a period of 90 days or more. MLS tracking of this field, if any, shall be classified as “non-confidential” for the purpose of allowing Participants and Subscribers to make such information available to clients or customers pursuant to Sections 12.15.1 (Client Copies) and 12.19 (VOWs). [Whether display of this field is permitted for advertising purposes, including IDX display set forth in Section 12.16, is at the discretion of the MLS.]
PROPOSED MOTION:
That, upon final approval by NAR, C.A.R. Model MLS Rules be revised to add the new underlined language set forth above.
