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?
Eric Bramlett
March 3, 2012 at 4:28 pm
Excellent editorial. No matter who claims to own the content, it’s ultimately the consumer’s property, who should ultimately decide how and where it’s advertised.
Jeff Brown
March 3, 2012 at 7:26 pm
Whenever I’ve mentored young/new agents, I’ve told them that if the owner knew how to sell their property quickly, and for the highest possible price, they wouldn’t be interviewing agents in the first place.
So now they’re the arbiters of what works?
Pick one, guys. I differ with what most of what I hear and read on this and related topics. I understand the differing viewpoints, but disagree.
Full disclosure is fine, and should always be practiced, both to the letter AND spirit of the law, and common sense.
People hire professionals to do jobs for which they consider themselves unqualified. There are rare exceptions, but they tend to prove the rule. Words mean things. Unqualified is unqualified. Our clients come to us expecting that we know far more than they do about what they need done.
This is no different than when I was still in the house side of the business, back in the early 70s.
Almost guaranteed during a listing presentation was the question, “Will you be holding open houses?” My answer varied, depending upon the neighborhood and other factors. But, I ALWAYS showed them research empirically demonstrating how woefully impotent open houses were in actually, you know, selling the house being held open.
Whenever we call professionals for any reason, in any field, we do so to obtain results significantly superior to what we could produce ourselves. Sure, we may ask questions, but mostly to make ourselves feel better. Most of us, in reality, don’t even know many of the questions to ask, much less the answers. Heck, he best and brightest in our industry in large part as a result of consistently answering questions their clients never would’ve known to ask
Most of us could study what professionals in other disciplines do for six months, yet still not know what they’ve forgotten.
If the client is in charge of how the broker obtains the desired results, they don’t need a broker. Either that, or they don’t need a broker who is so weak they’d allow it.
Again, differing viewpoints. There’s clearly room for all of ’em.
Benn Rosales
March 3, 2012 at 8:09 pm
I think all of that is the truth, just put it in writing so we all know the client made the decisions, other wise you’re opening up a whole new can of worms. The realtor can only advise, not decide.
Eric Bramlett
March 4, 2012 at 1:34 pm
Jeff –
The Texas promulgated listing form has a section for “will/won’t submit to MLS” and a section for BAC offered. It could be argued that these are unnecessary – just do whatever it takes to sell the dang house. However, these items are so important to the public that they’re explicitly listed on the contract.
Since many listing agents feel it’s in their best interest (and not necessarily in the clients’ best interest) to forego submitting to IDX, I agree with Benn that it’s in the clients’ best interest for this to be outlined in the contract.
Jeff Brown
March 4, 2012 at 1:42 pm
Hey Eric — I understand the thinking there.
“However, these items are so important to the public that they’re explicitly listed on the contract.”
It was very important to ‘the public’ back in the day for the agent to hold open houses too, as I mentioned earlier. Never mind that it was, ironically, one of the top marketing tools for the agent to secure other listings in the area. Or that most of the time the majority of those who showed up were neighbors.
Again, though I think this is disclosure/transparency run amok, I get the thinking/intentions behind it. Pretty soon agents will begin to realize who is the pro, and who is the amateur. Maybe I’m just a 60 year old broker who simply refuses to knuckle under whenever the pendulum swings back to the tail wagging the dog.
Jeff Brown
March 3, 2012 at 8:54 pm
Amen, Brother Benn. Agreed.
Kent Simpson
March 3, 2012 at 9:50 pm
There are quite a few brokerages that have “house” disclosures for different things i.e: having an interest in a mortgage brokerage or escrow company. I think we’ll soon see disclosures pertaining to internet marketing avenues begin cropping up here & there as we go along. Some will just add it to the pile of required documents while others will use it as a marketing tool to “show separation from the pack.”
Nevertheless, a disclosure is only as good as the agent explaining it – some will get it while others refuse or fail to understand the nature of why there is a disclosure in the first place.
Jodie Carpine
March 3, 2012 at 10:04 pm
I agree. My CMA always include a market plan which details the sites the listing will be sent to!
David Pylyp
March 3, 2012 at 10:38 pm
Interesting debate. Our Ontario Canada forms do indeed say distribute to Internet portals, mls. That would imply that the Broker indeed can do as they wish.
What will your side of the border do with the syndication debate?
David Pylyp
Living in Toronto
Jim Olenbush
March 3, 2012 at 11:20 pm
If you list a home in Austin MLS and put “Owner Name Withheld” in the owner field, the Austin Board of Realtors will call and demand that you send written authorization from the seller that they do not want their name in the MLS.
On the other hand, if you withdraw all of your listings from “Internet Display” which includes public websites and the IDX data feed, there is no requirement to obtain the written consent of the sellers. It doesn’t make any sense.
Bob Hertzog
March 4, 2012 at 12:57 am
Very interesting perspective. I can tell you that sellers expect their home to be listed in as many places as possible, and I could see this type of disclosure become an issue for those that have decided to “take their ball and go home”. Awesome post!
Doug Miller
March 5, 2012 at 5:04 pm
Well written article. What isn’t mentioned is the merits of a class action lawsuit in this situation. Think about it this way – when a broker engages in self-dealing it is akin to theft by swindle. If the broker has eliminated syndication as a marketing option for their sellers in order to increase the chances of double dipping, does that create a viable cause of action? What if the sellers are harmed by the decrease in market exposure? Typically damages in a self-dealing case are automatic forfeiture of fees earned.
The idea that explaining syndication to clients is, “disclosure/transparency run amok” is absurd. Listing brokers who don’t have a decent marketing plan attached to their listing contract shouldn’t be working with clients. Consumers deserve better.
I am the Executive Director of a non-profit dedicated to consumerism in real estate. We just covered this topic on our website and side with the author of this article.
Jeff Brown
March 5, 2012 at 9:07 pm
Hey Doug — Consumers deserve honest work, by an agent with solid integrity, and high character. Beyond that they deserve the results for which they hired the agent.
Absurd? That’s an opinion. Watch how you’re throwing those words around. I was wondering who’d been elected the all knowing arbiter of everything moral. Thanks