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The real estate industry has been anything but dull over the past year, with commission litigation and new practice changes awaiting final court approval. However, I think most practitioners would agree this isn’t the kind of excitement they were hoping for. More recently, controversy surrounding the Clear Cooperation Policy (CCP) has surfaced, prompting me to write this piece.
For those unfamiliar, the CCP was established by the National Association of Realtors (NAR) in 2020 and mandates that properties be listed on a Multiple Listing Service (MLS) within one business day of any public marketing. Enforced by NAR-affiliated MLSs, the policy aims to standardize listing practices, promote transparency, and broaden property exposure through this platform.
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As a real estate compliance consultant, I’ve encountered brokers and agents over the years who have expressed dissatisfaction with the CCP. Many of their complaints echo more widespread public opposition to the policy. Namely, real estate licensees want to be trusted to do their jobs and earnestly serve their clients — without being hindered by unnecessary red tape or restrictive rules.
What often complicates this discussion is the disconnect between state law and NAR/MLS rules. The CCP is a NAR rule enforced by MLSs, not state regulators. In California, for example, there is no state law requiring properties to be listed on the MLS within a specific timeframe after public marketing. Consequently, when a broker client asks whether the Department of Real Estate (DRE) “will come after me” because an agent violated the CCP, the answer is no — unless the circumstances suggest a potential violation of state law.
While state regulators do not enforce the CCP, real estate law governs the larger context of listing, selling, and buying real property. This encompasses oversight of core principles such as fiduciary duty and its associated statutory obligations, including an agent’s responsibility to prioritize their client’s interests above their own and to represent their clients with obedience, honesty, and loyalty.
It goes without saying that most brokers and agents would far prefer to pay an MLS fine for violating the CCP rather than face a regulatory complaint or civil lawsuit over fiduciary duty. But what if everything were on the line? Well, newsflash — it is. Listing presentations, sales pitches, advertising, representations, agency, disclosures, documentation, and actions are always subject to evaluation, whether the CCP survives or not. Let’s explore this further.
Parallel issue: Lessons from ‘coming soon’ listings
A 2018 California DRE Real Estate Bulletin explored “Coming Soon” listings, which, like off-market listings, raise questions about compliance with fiduciary duty. To clarify, “Coming Soon” is a local policy or feature varying by MLS, with individual systems adopting their own rules for listing statuses. According to the California Regional MLS’ (CRMLS) FAQs:
“The Coming Soon status allows listing brokers and agents to place a listing in the MLS for cooperation for up to 21 days (except New Construction Listings) while preparing a property for showings (staging, professional interior photos, repairs, etc.). Because CRMLS rules do not permit showings while a listing is in Coming Soon, Days on Market (DOM) will not accrue during the Coming Soon period … ”
