To all the agents in the house,
Legal efforts to overturn the National Association of Realtors' ban on pocket listings are suddenly getting serious. After multiple rulings that sided with NAR in a lawsuit filed by Top Agent Network to overturn the ban, San Francisco federal judge Vince Chhabria stated in an order two weeks ago that NAR's policy may be "overbroad." The judge wants to hear more arguments from both sides.
Chhabria's pivot comes a month after the U.S. Department of Justice filed an amicus brief in a 9th Circuit Court of Appeals challenge to the pocket listings ban, a lawsuit separate from the one filed by Top Agent Network. The Biden Justice Department argued that the lower court judge misunderstood antitrust law in throwing out The PLS.com's challenge to NAR policy. The court is anticipated to schedule oral arguments in the case for later this year.
NAR's pocket listings ban has been on the books since last year. It requires sales agents advertising their client homes to market those homes on the local, NAR-approved MLS. Sales agents, most who are dues-paying members of NAR and local real estate associations and a few local MLSs (there are, literally, a lot of dues to pay) get fined and penalized for marketing a home without putting it on the MLS.
I've spoken with several of you about this ban, and opinions are split about whether it's NAR overreach or a noble effort to wrangle every single home for sale onto a transparent database, in the process better complying with the Fair Housing Act (some of you believe both these things!).
I'd like to learn more about the ban's practical effects. Specifically:
- How many home sales before this ban were pocket listings? Twenty percent? Two percent? How many home sales today are (in defiance of NAR policies) pocket listings?
- How is your local MLS enforcing this ban?
Are agents reporting on other agents who are flouting the requirement? And how is MLS adjudicating such complaints? Do they issue blanket fines, no questions asked, as if they were parking violations? Or is there a process to hear the accused agent's side of the story?
If you are an MLS administrator, employee or volunteer reading this, I would be very interested to know how you are enforcing this ban.
For anyone with information and thoughts about the pocket listings prohibition, please email me anonymously at mblake@housingwire.com.
Sincerely,
Matthew Blake
Senior Real Estate Reporter
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