NAR Retains and Amends the Clear Cooperation Policy
The initial version of the National Association of Realtors (NAR) Clear Cooperation Policy (CCP) stipulated that, subject to office exclusives, listings had to be entered onto the MLS within one business day after being marketed to the public. The policy has had supporters and detractors, including critics who believe sellers should be able to decide how, when, and where their properties are marketed.
The CCP is One of Several NAR Rules Which Have Come Under Attack
The Clear Cooperation Policy is just one of several NAR rules which have come under attack over the past several years. Others include the Buyer Broker Commission Rule, the “No Commingling” Rule and the Three-Way Agreement. Following the verdict in Sitzer | Burnett and NAR’s subsequent settlement, and NAR’s subsequent settlement, the CCP came under particularly close scrutiny, with prominent voices in the brokerage and portal industries split about whether to keep, amend, or rescind the CCP.
The DOJ Announced its Position on the CCP
For good reason, the real estate industry carefully scrutinizes the Department of Justice’s position on NAR rules. So, industry leaders were listening attentively when the DOJ filed a March 17, 2025 Supplemental Statement of Interest (SOI) in the Nosalek case. While speculation/conjecture is a risky proposition, a footnote in the DOJ’s Supplemental SOI may have provided just enough cover for NAR to retain the CCP. The DOJ stated that its Antitrust Division has not taken a position about whether the CCP, standing alone, is anticompetitive. The DOJ’s scrutiny of the CCP is long-standing and includes a June 2020 Civil Investigative Demand (CID No. 30360), followed by a years-long legal battle between the DOJ and NAR, with that battle evolving into a long, drawn-out campaign, extending up to the U.S. Supreme Court.
The NAR is Amending the CCP
On March 25th, the NAR announced its decision to both retain and amend the Clear Cooperation Policy (CCP). Moreover, the CCP will be accompanied by a new NAR policy, Multiple Listing Options, that will work in tandem with the CCP. Both are included in NAR’s Handbook on Multiple Listing Policy, which guides Realtor associations operating MLSs.
Multiple Listing Options
The Multiple Listing Options for Sellers policy statement is effective immediately, March 25th 2025. However, MLSs have until September 30th to implement the changes. Pursuant to Multiple Listing Options for Sellers, office exclusives must be filed with the MLS but not circulated to other MLS participants and subscribers.
Sellers can direct listing agents to postpone marketing through the Internet Data Exchange (IDX) and syndication. While deployment through these channels is delayed, listing agents can otherwise market properties by adhering to sellers’ needs and interests. Delayed marketing exempt listings are filed with the MLS and can be examined by other MLS users and subscribers who can, in turn, share them with clients and consumers. So, the listing is still entered into the MLS and, therefore, visible to other agents and brokers who can show it to their clients. However, pursuant to the newly minted policy statement, the seller can delay public exposure of the listing. Specifically, the seller can postpone exhibiting the listing through an IDX feed and syndicating delayed listings to other entities – such as Zillow. The duration of the delay will be determined independently, by each of the hundreds of MLSs across the country.
Local MLSs will also have to determine how to measure days on market when the “delayed marketing exempt listings” option is chosen. Days on market (DOM) was an important issue for companies such as Compass, which claim that this metric can adversely impact property values.
The legal landscape surrounding the brokerage and portal industries continues to be congested, with many important controversies remaining unresolved. There is support for the contention that the autonomy provided by NAR will result in an even more balkanized system – due to the 600 +/- MLSs making independent determinations pertaining to the length of the delay. Many of those impacted are expressing frustration at the seemingly endless array of controversies, with new ones popping up, sometimes triggered by what had been optimistically characterized as “solutions”.
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