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“If my calculations are correct, when this baby hits 88 miles per hour … you’re gonna see some serious —” well, let’s just say, disruption, to rephrase a memorable line from Doc Brown, played by Christopher Lloyd, in the 1980s film Back to the Future. The film’s exploration of time travel got me thinking about where the real estate industry might be heading. Here’s why.
For the real estate industry, that 88 miles per hour moment — the one that sends us hurtling back in time — is the resurgence of pocket listings. This shift could give larger brokerages tighter control over inventory and fuel the rise of dual agency, reshaping the real estate landscape just as the industry is adjusting to new rules and legislative changes.
The thing about time travel is that it’s fun in the movies, especially when you’re cruising in a DeLorean with a Huey Lewis soundtrack blaring in the background. But it might not be so enjoyable when you’re a buyer trying to find your dream home in 2025, when the market feels like it’s returning to years past, with limited options and outdated constraints.
If someone had told me a few years ago that after battling antitrust lawsuits and pushing for greater transparency, the real estate industry would willingly turn the clock back to a fragmented, opaque marketplace, I wouldn’t have believed it.
On the heels of NAR’s latest moves regarding the Clear Cooperation Policy (CCP) — affirming the policy while simultaneously emboldening the rise of private listing networks (PLNs) — it feels like we’re shifting into reverse. Instead of embracing a more open and equitable marketplace, we’re seeing an accelerated push toward keeping properties behind closed doors, selectively marketing them under the guise of “seller choice.”
I’ll set aside, for a moment, the debate over whether limiting a property’s exposure actually serves a seller’s best interest. There’s no shortage of arguments, articles, and data questioning the wisdom of restricting market reach and the negative impacts on sellers. In fact, if you’re looking for a comprehensive summary, I highly recommend James Dwiggins’ latest op-ed, where he breaks down the pressing issues and lays out some dire predictions, which even he hopes will be proven wrong.
But returning to this piece, the focus here is on buyers. While this private listing route might benefit certain sellers in specific situations, the broader brokerage strategy of pre-marketing homes or keeping inventory hidden significantly affects buyers, who, last time I checked, are integral consumers in the real estate market.
Threat to buyer representation
Ironically, when the NAR settlement was first announced, some in the industry discussed the survival of buyer agency and whether dual agency would become more common. Many predicted that changes to commission structures and the new requirement — viewed by some as a burden — for buyer representation agreements before home tours would diminish the role of buyer agents.
But what if the bigger threat isn’t compensation at all? What if the real threat to buyer agency lies in PLNs, where substantial portions of inventory are controlled by a handful of large brokerages, and dual agency becomes the go-to arrangement for transacting these deals?
If brokerages hoard listings within PLNs, where does that leave buyers? It’s a fair question that hasn’t been raised enough, largely because louder voices have been touting “seller’s choice” and arguing that the Clear Cooperation Policy (CCP) restricts it.
But the real issue is that when buyers can’t access listings through independent brokerages, they’re more likely to find themselves working directly with the listing agent and/or the brokerage who holds the listing — and that opens the door to dual agency which will be examined in closer detail in a moment.
Tanya Monestier, a professor at the University at Buffalo School of Law who is appealing the NAR settlement, provides a helpful analogy to frame this situation:
“I think there’s a rough analogy to be made to streaming services. Imagine if Netflix, Hulu, Apple +, and Amazon Prime required you to subscribe just to see the titles and description of what they are offering. And once you subscribe to one service, you are prohibited from subscribing to another. If you don’t subscribe at all, you’re stuck with whatever leftovers are on cable TV. That’s the direction we’re going with PLNs.”
This narrowing of options could force buyers into situations where they don’t fully understand what they’re giving up — just as one might not realize the true cost of being locked into a single streaming service until they’ve been subscribed for months.
Notably, this could lead to a situation where by restricting access to inventory and limiting buyers’ choices to specific networks, the real estate industry could create a marketplace where consumers must play by rules they didn’t agree to, often without even realizing the extent of the limitations.
When choice disappears: The dual agency dilemma
As PLNs gain traction, we’re likely to see a rise in double-ending deals, many of them involving buyers who may not fully grasp what dual agency means for their rights and representation. From a compliance perspective, dual agency is the World Series of legal risk: high stakes, complex rules and not a game for rookies.
Sellers typically hire their agents with care, based on interviews, referrals or past experience. But in an off-multiple listing service (MLS) or private listing world, buyers may find themselves with far less choice.
If the property they want is tucked inside a private network, the only way in might be through the listing agent. In other words, while sellers thoughtfully selected their representation, buyers are forced to accept theirs — because access comes first, and questions come later.
When a buyer’s agent morphs into a dual agent, the shift is supposed to come with full transparency, meaningful disclosure and true informed consent. But how often do buyers truly understand what they’re giving up? The duty of undivided loyalty doesn’t always split cleanly down the middle, and buyers in a private listing world could be left holding the short end of the stick.
After years in both enforcement and consulting with the California DRE, I can tell you this: Dual agency is legally permitted in many states and can be navigated ethically — but it’s not easy. It demands a nuanced understanding of fiduciary duties and a rare ability to walk the tightrope between both sides. Most agents are not trained for that level of complexity, and most buyers have no idea what risks they’re stepping into.
Dual agency only adds another level of complexity and risk. Agents navigating these waters must work closely with their brokers (and legal counsel when needed) to meet disclosure and fiduciary obligations. Anything less exposes both the consumer and the licensee to serious consequences.
Here’s the rub: Even when disclosures are made, and forms are properly signed, dual agency still opens the door to lawsuits, consumer complaints and regulatory scrutiny. Now layer in an off-MLS sale, and you’ve got a scenario ripe for second-guessing, especially if the buyers later learn they could have had broader exposure to options or stronger advocacy during the offer process.
So here are two data points I’ll be closely watching: how many private listing deals result in dual agency and whether those dual agency deals lead to increased regulatory enforcement. Because when agents cross into representing both sides, it’s not just a compliance issue — it’s a question of whether buyers are getting the clarity, choice and protection they deserve.
New Bright MLS study
Timely and hot off the griddle, Bright MLS recently released a study that they conducted, “Impacts of Office Exclusives on the Housing Market,” analyzing six months of data and over 100,000 home sales in its service area.
Among key findings challenging the value of private listings, the report states:
“Withholding listings from the MLS limits buyers’ access to inventory. Inventory has been at record lows, and a lack of supply has been a major constraint on housing market activity. In some local markets, the practice of marketing listings privately can significantly limit inventory available to the vast majority of home shoppers. In some ZIP codes within the Bright MLS service area, office exclusives account for more than 20% of the overall number of listings.”
Additionally:
“Seventy percent of agents in our marketplace said they had worked with a buyer client last year who decided to stop their home search, and frustration over competing against other offers and a lack of homes to choose from were among the most common reasons these would-be buyers stepped out of the market.”
Again, is this the future, or are we going back in time?
Hidden data: The silent threat to market transparency
Still, one of the most troubling consequences of PLNs is the quiet suppression of critical market data — especially Days on Market (DOM) and price history — often under the guise of protecting the seller. But for buyers, these metrics are essential. They help contextualize value, inform negotiation strategies and provide a more complete picture of a listing’s journey. Within a PLN, that picture can be selectively erased.
- No DOM tracking means buyers won’t know how long a home has been available, removing a key indicator of leverage or demand.
- No visible price history gives sellers and their agents control over the narrative, potentially concealing pricing missteps or soft interest.
What’s even more concerning is that this lack of transparency doesn’t just impact buyers directly — it also affects them indirectly, as the appraisal process becomes more complicated.
Appraisers depend on MLS data to find comparable sales and justify valuations. When listings are kept off the MLS, available comps become limited, making valuations less reliable. This can result in financing issues, price disputes or even failed escrows, which affect both buyers and sellers in the long run.
This opacity can also distort the advice buyers receive. For example, imagine a buyer working with an agent from the same brokerage that’s quietly holding the listing off-MLS. Without access to comprehensive market data, the agent can’t provide a full view of market conditions, potentially leading to misguided advice for the buyer.
And here’s the deeper paradox: If transparency was the driving force behind commission reform, shouldn’t it also apply to how listings are shared and how market data is made available? Buyers are now expected to negotiate their own compensation, but how can they do that effectively if they don’t have access to the data that shapes value and strategy?
Honestly, though, this isn’t just a compliance issue — it’s a consumer fairness issue. And the irony is, today’s seller may become tomorrow’s buyer. If the system isn’t fair for everyone, it undermines the very transparency that should be the foundation of a healthy, equitable market.
A step backward for fair housing
Transparency has been the rallying cry post-settlement, with an emphasis on new commission structures and disclosures. But when it comes to property listings, selective transparency could become the new norm. As it stands, NAR’s recent actions regarding the CCP and the rise of Delayed Marketing Exempt Listings have introduced a semi-transparent listing status that could disproportionately impact buyers.
For buyers, this shift could mean reduced access to critical information about available properties. With more homes being sold off-MLS, they might not even know about a property until it’s already under contract. Importantly, without full exposure to all available inventory, buyers — especially those from historically marginalized communities — could face increased barriers to finding homes that meet their needs, potentially placing them at a disadvantage compared to those with access to a broader set of listings.
Selective marketing practices could exacerbate this issue, systematically limiting certain buyers’ access to a full range of properties, further entrenching market inequities. Buyers from marginalized groups, including racial minorities and individuals with disabilities, could be disproportionately impacted by such practices, potentially facing exclusion from key housing opportunities.
If everyone is following along here, then your inner ethical alarms should be ringing. This is more than just a transparency issue — it’s also a potential fair housing issue. If certain buyers are systematically excluded from accessing a full range of property listings, it could further entrench disparities in market access and homeownership opportunities.
For agents and brokers operating within this shifting framework, the risks are real. Promoting private listings or steering clients toward these less-than-transparent strategies not only places buyers at a disadvantage but also exposes practitioners to potential legal, ethical and regulatory scrutiny — both at the state and federal level — and heightens the risk of civil liability through litigation.
Wait, what year is it again?
So the story goes like this: Realtors were the target of antitrust litigation, which led to new rules emphasizing commission transparency and consumer-centric practices. Now, the industry is at a crossroads over property listing transparency, with some brokers championing “seller choice” at all costs — even if that means embracing private networks, curbing buyer access and turning back the clock on the progress we’ve made.
It’s clear to me that the conversation needs to shift. This isn’t just about brokers defending “seller choice,” a controversial stance on its own. It’s about licensed real estate professionals upholding and protecting consumer choice. That means ensuring buyers have the information and access they need to make fully informed decisions in their own best interests.
At the end of the day, buyers aren’t trying to game the system; they just want to find the right home. But if we keep heading down this path, how can they trust they’re getting a fair shot in a market that’s already challenging, with limited inventory and high interest rates?
Maybe it’s time to double-check the year and reconsider the direction we’re heading. If we continue down this path, we risk revisiting practices that push us back toward a less transparent market — one that leaves buyers in the dark and disrupts the industry in ways that harm everyone.
NOTE: The opinions, suggestions, and recommendations contained in this discussion are based on Summer Goralik’s experience working for the California Department of Real Estate and as a real estate compliance consultant
