The root of the debate: listing agreements
I’m not sure how your listing agreements read in your neck of the woods, but in Texas, the listing agreement really goes nowhere in describing what listing syndication is, in fact, it’s roughly one line that essentially says you will or won’t list the property for sale in the multiple listing service (MLS). Now I don’t know about you, but sitting in the seat of the listing client, I’ve shopped you as a Realtor listing agent, and seen advertisements across a broad spectrum of websites that promote the benefit of listing via the MLS, which in most cases includes promotional material expounding that the listing will be seen on Realtor.com, Zillow, and others.
As a property owner, by the verbiage regarding the MLS used by the industry on websites across the nation, I have a reasonable expectation that a Realtor will promote my property online across the broad spectrum of sites that advertise properties.
How could I possibly make this assertion? Common sense. Most Realtors don’t know the difference between IDX, syndication, VOW, etc. – how would we expect a property owner to understand the difference? So why would Realtors’ listing agreements fall so short in contractually spelling out exactly what internet display means to the listing client? You really cannot call it a contract if the contract does not describe exactly the service provided by the broker to the listing client. In my humble opinion it’s misleading to the consumer, and the inept description is intentional.
The debate belongs between Realtors’ and their clients
Why intentional? Because omission of the facts is misleading, and on the surface, the listing Realtor and Broker want to decide how they market the property and the level of effort (dollars spent) they’ll invest to market the property and as they see fit. But it goes even deeper than that. Truth be told, full disclosure at the time of listing as to how the property will be listed is the lynch pin to the entire syndication debacle.
Full disclosure to the property owner at the point of agreement would force a full understanding that the Broker claims full ownership of images, descriptions, and other intellectual property and intends to copyright said material. It would also force the full disclosure as to the Brokers’ intention in regards to sharing the data and with whom, and it would even further give the consumer the option to say no thank you and shop for a listing agent that will fully and openly share their property for sale with anyone who wishes to promote it for pay or for free. Additionally, consumers should know up front if a broker is directly benefiting financially by choosing one third party listing site over another, especially if limiting exposure could cost the client money in the form of more days on market.
Ultimately, this is a fight a consumer would win as their primary objective is to actually sell the property, as well as the tendency of many courts to side with consumer choice and transparency, so why not just end this short-sighted practice now?
Disclosing intentions, being clear with clients
By fully describing syndication, and your intentions on sharing (or not sharing), Brokers ultimately put in writing that they have fully disclosed to the consumer their options. If the property owner does not agree with the broker’s intentions, they can negotiate or walk, or the broker can walk without negotiation. The consumer has a right to fully understand at the time of agreement whether they’ll see their property on Trulia or not, and actually agree to it – or not.
It’s all pretty simple, and no soaring rhetoric is needed to explain why this is such a simple stupid solution to a problem of ignorance (real or feigned) that leaves the property owner ignorant, which is ultimately a violation of a Realtor’s fiduciary duties. I’m pretty sure that during the life of the listing agreement, the property owner might like a say in who owns the data and define who exactly is in charge of how their property is marketed. If Facebook has to disclose how they will use consumer data, so should Brokers, whether it pertains to the period before, during, or after a listing agreement – and it begins with the consumer understanding these facts at the time of agreement execution.
A listing agent may disclose in their listing presentation the final destination of all listing data, but does it conflict with the broker’s plan, or the local listing agreement’s verbiage? None of this was a major issue until brokers themselves began publicly pulling out of IDX, MLSs, and the like, so now that brokers have made it a big deal, it is time to disclose to consumers the details of listing data at the same level of detail that is disclosed about the properties themselves, and that begins with detailed syndication disclosures within the listing agreement.
So, will the industry have the balls to take action on its own?