The experience of lying in bed late at night and scrolling through a nearly infinite feed of homes is a modern miracle — not merely because of all the tech packed into your iPhone, but for the simple reason that all those houses are gathered in one place. Open up Zillow, Redfin, or any of their competitors, and you'll have a clear picture of almost all the homes up for grabs around the country.
That may be about to change. Real estate's power players are engaged in a bitter standoff over who exactly gets to see the millions of homes listed for sale in the US each year. At the center of the debate are the multiple-listing services, or MLSes, local databases that gather pictures and details of homes for sale. Almost as soon as a real-estate agent starts touting a home publicly — via an email blast, a post on their website, or a sign in a front yard — they'll throw the listing on the MLS to be fed to other agents and aggregator sites like Zillow. Smart business move? Sure. But agents also don't have a choice, thanks to a rule handed down five years ago by the powerful National Association of Realtors called the "clear-cooperation policy," which requires them to list a home on the MLS within one business day of marketing it to the public.
Some of the industry's high-profile figures are pushing for the NAR to loosen the rule or get rid of it, which they say would give sellers and their agents more freedom to choose where — and to whom — they advertise their properties. The NAR's top brass are set to consider the change in the coming months.
The cynical take is that those in favor of a shake-up — including the leaders of some of the country's largest real-estate brokerages, like Compass and Anywhere Real Estate, the owner of big-name brands like Coldwell Banker and Century 21 — just want to hoard listings on their own websites. As gatekeepers, the thinking goes, they'll be able to lure agents and clients with exclusive access to these properties, growing their businesses and padding their bottom lines. The result would be a more fractured market; instead of going to just Zillow or Realtor.com, a buyer might have to comb through individual brokerages' websites. Agents might be emboldened to share listings among private networks of in-the-know brokers rather than market them to everyone. More homes could trade hands out of view of the average homebuyer.
"If you were to ask people, 'Should houses be hidden?' most people would say no," Brian Boero, the CEO of 1000Watt, a brand and marketing agency for real-estate companies, told me. "If you asked people, 'Should everybody be able to see the houses that are for sale on the market at any time and have, at least, access to them?' I think most people would say absolutely."
It's not quite so cut-and-dried. Opponents of the rule say sellers should be able to market their homes however they see fit, arguing that there are all kinds of reasons someone might not want to list their home on the MLS. And if the goal is a transparent market that prioritizes consumers, the clear-cooperation policy is a flawed tool. It contains a glaring loophole that critics say may have actually pushed more home sales into the shadows.
This latest conflict pits Goliath against Goliath, but the stakes are highest for the millions of Davids just trying to put roofs over their heads. The typical buyer wants to see all the homes available, while the typical seller wants a quick sale and a good price. Which kind of housing market will get them there? Both sides claim to know the answer, but their visions for the future of homebuying are miles apart.
In the not-so-distant past, MLSes distributed home listings via books — thick, unwieldy tomes that were outdated by the time they made it into a real-estate agent's hands. The introduction of the online MLS around the turn of the century was a revelation, providing a central repository of reliable info on an area's available homes. The system isn't perfect: Access to the MLS is often restricted to licensed agents who pay hundreds of dollars in dues each year to belong to their local, state, and national Realtor associations, on top of MLS fees. Since there are more than 500 local MLSes in the US, an agent might have to pay dues to several of these groups just to see all the homes within an hour's drive of their office. But the databases are still widely considered a model for the rest of the world.
While an agent doesn't technically have to participate, the MLS's trove of data is practically a necessity to do the job. And in order to play in the MLS sandbox, you have to follow the MLS rules. About 97% of local MLSes are effectively controlled by the NAR, a trade group with roughly 1.5 million members who pay for the "Realtor" designation and agree to abide by the organization's ethical and professional guidelines. The NAR doesn't own the MLSes directly, but it sets the rules for most of them. Five years ago, the organization's leaders pinpointed a growing problem: Some agents weren't playing fair. They were keeping select listings off the MLS and marketing them on their own websites or among clubby groups of brokers known as private listing networks. The prevalence of so-called pocket listings has always been hard to quantify, but pretty much everyone agrees they were on the rise in the years leading up to the COVID-19 pandemic. Redfin estimated that in the second quarter of 2019, about 1.7% of listings, or some 18,000 homes, were likely pocketed. Those homes were marked "sold" or "pending sale" the same day they were put in the MLS — a sign that the transaction may have already been wrapped up in private.
If you were to ask people, 'Should houses be hidden?' most people would say no.
Agents promoting pocket listings might argue that they were acting in the best interests of their clients; a seller going through a messy divorce, for example, may prefer a quiet sales process rather than the fanfare of a public listing. The MLS also displays information that may not be favorable to a seller. It shows the number of days a home has been on the market and keeps track of price cuts, offering buyers leverage points that would never be found on a listing broker's website. There are, of course, self-serving reasons an agent might prefer to advertise a home off the MLS. If they find an unrepresented buyer, they may be able to pocket the portion of the commission that would have otherwise gone to the buyer's agent, upping their haul from the sale to, say, 6% instead of the typical 3%. Belonging to private listing networks could also help drum up business: Work with me, an agent could tell a buyer, and you'll get access to all these listings that Joe Schmo at XYZ Brokerage doesn't even know about. Indeed, Top Agent Network, a destination for high-achieving brokers to share "not-yet-on-MLS properties" with each other, claims on its website that agents can help buyers find their dream homes "by staying ahead of the market."
The whole point of the MLS, though, is to have all listings in one place for everyone to find — the system falls apart if agents get to pick and choose which ones to contribute. The NAR's answer to this chaos was the clear-cooperation policy. The rule, which went into effect in May 2020, tightened the screws on agents by requiring them to put a listing on the MLS within one business day of marketing it to the public. For-sale sign in the front yard? Better get it on the MLS pronto. Gush about it on your Facebook page? Clock's ticking. Teasing homes in a private listing network without also posting on the MLS was a no-go.
The idea was that any alternative to the MLS would harm both consumers and their agents. A seller risks getting a lower price if there are fewer eyeballs on their listing. A buyer might know of only a fraction of homes for sale at any time, limiting their options. Agents can't make money off shadow listings that they don't even know about. MLSes are also huge sources of revenue for the many local Realtor associations that own and operate them — the NAR has a direct interest in making sure they remain valuable.
"Everybody benefits when we all pool our listings, and we do so in a timely manner," Saul Klein, a longtime real-estate executive who's the CEO of the San Diego Multiple Listing Service, told me. "And people are hurt, potentially, when we don't do that."
The new rule, however, included a loophole. It allows agents to market a home to other agents within their brokerage without sharing it on the MLS, a practice known as "office exclusives." The carveout effectively allows for private gardens within each brokerage, filled with homes you can't find anywhere else. Large brokerages like Compass, which has more than 30,000 agents across the country, can make a pitch to a seller like this: "We'll maintain your privacy by keeping your home off Zillow and test your chosen price across our huge network. We can limit the showings so you don't have random people traipsing through your home. And if you're not satisfied, we can always turn to the MLS later."
Today, many large brokerages tout offerings that attempt to capitalize on this state of play. Compass, for instance, will offer to list your home as a "private exclusive" within its brokerage before launching it to the public. Howard Hanna's "Find It First" program allows sellers to "benefit from broad exposure without compromising on control," the company's CEO, Howard Hanna IV, said in a statement. In a lawsuit after the unveiling of the rule, Top Agent Network accused the NAR of privileging large brokerages (which belong to the association) while stamping out the competition from alternatives to the MLS. It complained that the organization's rule was "a transparent attempt at protecting its turf, not helping consumers."
The clear-cooperation rule faded into the background as the pandemic upended the industry. But as the market settled and other big changes, like the class-action lawsuits over agent commissions, reached a resolution, a group led by Compass' CEO, Robert Reffkin, began publicly pressuring the NAR to reconsider clear cooperation. Mauricio Umansky, a celebrity agent and brokerage CEO known for appearing on "Buying Beverly Hills," "Real Housewives," and "Dancing with the Stars," was already part of the opposition to the rule, having sued the NAR over his attempts to start an MLS alternative known as the PLS, or the Property Listing Service. Executives at Anywhere Real Estate, one of the largest brokerage companies in the country, have pushed for the rule to be loosened but not eliminated — one suggestion is to give agents more time to market a home publicly before listing it on the MLS. On the other side, executives at Zillow and Redfin decried the potentially disastrous consequences of a fractured housing market. In a recent op-ed article, Redfin's president and CEO, Glenn Kelman, argued that the end of clear cooperation would allow large brokerages to control more inventory, forcing buyers, sellers, and their agents to flock to big players rather than smaller outfits.
"The goal in weakening Clear Cooperation is to make being bigger matter — more than being better," Kelman wrote. "That is the law of the jungle, masquerading as freedom."
It's not clear, though, that the clear-cooperation rule made things much better for consumers. In a hot market, it's easier for brokers to market a home off the databases and still get it sold. Redfin estimates that in the second quarter of 2021, the share of listings that were likely pocketed increased to 2.8%, or almost 35,000 homes. The market has since slowed, and Redfin's estimation of pocket listings was down to 1.8% of sales in the second quarter of this year, roughly in line with the same period in 2019. These are imperfect estimates; it's possible for a home to debut on the MLS in the morning and have a sale pending by the end of the day without anything unscrupulous happening. They could also be undercounts, since some homes may never be listed in the MLS at all. Ultimately, the data from one of clear cooperation's biggest advocates doesn't prove that the rule has actually reduced off-MLS sales.
If you haven't bought a home yet, there is nothing more unsettling than seeing a moving van outside a house that never showed up in any of your searches.
What has changed since the rule went into effect is brokerages' eagerness to control access to home listings. Home sales volume has plummeted since the heady days of 2021, which means less revenue for the businesses that make their money by taking a cut of their agents' sales commissions. Without clear cooperation, brokerages could drive more traffic to their own websites by publicly advertising homes that aren't available in the MLS or on sites like Zillow. And they could continue to tease office exclusives that are accessible only if you work with their agents.
Both sides of this debate can reasonably claim that the industry will face legal trouble if they don't get their way. The Department of Justice, which has been fighting to reopen a wide-ranging investigation into the NAR, has signaled that the organization's control of the MLSes could be anticompetitive, stifling the development of alternative databases. What incentive is there for someone to start an MLS rival, the thinking goes, if basically everyone who uses the new database would still have to put their listings on the MLS anyway? On the other hand, proponents of clear cooperation argue that not showing homes to everybody could run afoul of fair-housing laws designed to ensure that buyers have equal access to the market.
"The fact that every listing is contributed to the MLS and that every consumer has access to that information is an enormous and overwhelming benefit to support fair housing," Victor Lund, a founder and managing partner of Wav Group, a consulting firm for real-estate companies, told me. "There is too much opportunity for housing discrimination without it."
There are a lot of ways this could go. The final call will rest in the hands of top leaders at NAR, whose board will likely mull over the issue at its annual convention in the second week of November. It could be months before a decision, however, especially since it's not clear what kinds of actions the DOJ may take against the organization. NAR leadership could keep clear cooperation as is, repeal it entirely, or revise it in ways that might not even be obvious right now. Several people I spoke with, including Kelman, told me they'd like to see the office-exclusive loophole closed — no more exceptions for agents marketing homes within their brokerages.
"If you haven't bought a home yet," Kelman told me, "there is nothing more unsettling than seeing a moving van outside a house that never showed up in any of your searches." An imperfect rule, he argued, is better than no rule. Those in Kelman's camp say a housing market without the current version of the MLS would be more divided and more difficult to parse. At the same time, it's impossible to brush aside the criticisms of the rule. There's no guarantee it will remain as it is when the dust settles.
The lawsuits over agent commissions last year were seismic, but they were ultimately about the practical matter of consumers' wallets: how much they were paying agents and what they were getting in return. The debate over clear cooperation strikes me as much more existential. Its result will determine the kind of housing market we have in the future. Buckle up.
James Rodriguez is a senior reporter on Business Insider's Discourse team.