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Op/Ed

The dangers of pre-MLS, pocket listings, listing clubs, and off-MLS listings

Pre-MLS listings are used for a variety of reasons, but as they become more popular for their advantages, let us look at the disadvantages.

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off-market listings

There are some past real estate practices that are now explicitly illegal. Referral fees deemed harmful to consumers were explicitly banned by RESPA. Dual agency is likewise under scrutiny, with mandatory disclosures being created to discourage the practice and the practice is now illegal in several states, with more states likely to come. If a practice is bad for consumers, it’s not likely to stay legal for long, and those who engaged in the practice might find themselves in serious trouble.

Pre-MLS, listing clubs, pocket listings, and off-MLS listings all fall into this category. All of these involve an agent or broker keeping a property for sale off of the MLS, for sale to a buyer:

  • found by word of mouth
  • found by sharing the property with agents in the same office,
  • found by sharing the property with a larger group of agents over coffee, through email, or through Internet sites.

In all cases, the agent’s aim is to get the entirety of the commission, or at least to have it stay within his own brokerage or other group that provides the agent some advantage. Given everything we know about the dangers of these forms of non-listing for the client:

  • minimizing exposure to audiences, both local and on web, who might purchase the property,
  • minimizing the number of offers received, and
  • property fetching lower sales price,

the agent is clearly privileging his own interests over the client’s. Like referral fees and dual agency, this practice is bad for consumers.

Even the government has taken action

We’ve already seen those “in the know” enact rules requiring MLS listing. In August of 2013, Fannie Mae said that it wouldn’t approve short sales unless the property had had an active MLS listing for at least five straight days including a weekend. I think that’s just the start – the government is aware of the financial harm caused by not giving a listing proper exposure. Take heed.

Some might ask, “Is MLS entry really needed to get top dollar for a listing?” Where it has been studied so far, the answer has been, “Yes!” In one study (at MLSListings), for every $100,000 of home sold, not having an MLS listing cost the sellers an average of $15,000. Do agents really think that once a consumer realizes they may have taken a $150k haircut on that million-dollar home just so the agent can get an extra 2-3% on a transaction, they’re not going to take action?

Financial harm to the consumer isn’t the only issue at hand

Financial harm to the consumer isn’t the whole of the issue either. In a recently published article, attorney Grant Harpold made the following additional points:

  • If a consumer makes a claim against the broker, the insurance company carrying the liability insurance may “take the position that intentionally leaving a property off of the MLS is not covered, i.e., no REALTOR® should be that careless.”
  • Such listings may actually “deny certain people access to the purchase of property. If only certain buyers are allowed to bid on the property, then the REALTOR® runs the risk of being party to a discriminating act, even if unintentional.”
  • A broker or agent may also “be subject to antitrust laws that are in place to promote competition.”

Handling off-MLS listings when clients request them

While the practice may still be legal, Mr. Harpold recommends that agents engaging in the practice explain the risks to the property owner and have them formally sign off on all of the risks – in writing. There may be instances where a sophisticated client – a celebrity or other high-net-worth individual – wants to use an off-MLS listing to protect his/her privacy.

If so, s/he can sign a form explicitly acknowledging the dangers of such a listing. It is worth noting, though, that there are alternatives to off-MLS listing in such a case, such as restricting the listing’s Internet display in the MLS context.

The practice is increasingly popular

In desirable areas with a shortfall in housing inventory, such as the San Francisco Bay Area, this practice is increasingly popular. Fully 29.4% of listings in Contra Costa County, in the Bay Area, were off-MLS in 2012. This provides increasing occasion for bad outcomes and even abuse, all of which will filter back to regulators, trial lawyers, and legislators. Without some tangible incentive for agents to keep listings within the MLS, an unwanted, imposed solution is likely down the road.

If the practice of off-MLS listing continues, we may expect one or more of the following outcomes.

  • NAR will step up and require MLS entry as a standard of practice.
  • Attorneys will smell blood and start a class action lawsuit against brokerages, leading to the practice’s decline.
  • A law will be passed prohibiting the practice.

The real question I’m left pondering is whether this practice will worsen perceptions of the industry before the trend fades away due to market conditions or is stopped by legal means.

This editorial first published in May 2014.

Matt Cohen has been with Clareity Consulting for over 17 years, consulting for many of the real estate industry’s top Associations, MLSs, franchises, large brokerages and technology companies. Many clients look to Matt for help with system selection and negotiation. Technology providers look to Matt for assistance with product planning, software design, quality assurance, usability, and information security assessments. Matt has spoken at many industry events, has been published as an author in Stefan Swanepoel’s “Trends” report and many other publications, and has been honored by Inman News, being listed as one of the 100 Most Influential Real Estate Leaders.

Op/Ed

To do list methods that maximize productivity, lower stress

(EDITORIAL) Even if you have a to-do list, the weight of your tasks might be overwhelming. Here’s advice on how to fix the overwhelm.

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To-do list in a journal with gold rings.

If you ask me, there’s no better way to unwind and ease everyday stress by making a to-do list. Like they said in the movie, Clueless, “It gives [you] a sense of control in a world full of chaos.”

While that quote was specific to a makeover, it certainly applies here. When you have too many things on your plate, making a to-do list is a quick way to get yourself in order. Typically, this does the trick for organizing your upcoming tasks.

It’s important to determine what method of listmaking works for you. I personally like to use sticky notes around my computer monitor to keep me in check for what’s needed to be done work-wise or by use of my computer. Other personal task items will either be kept in a list on my phone, or in my paper planner.

For work, I have a roster of clients I work with everyday. They each have their own list containing tasks I have to complete for them. I also use Google Calendar to keep these tasks in order if they have a specific deadline.

For personal use, I create a to-do list at the start of each week to determine what needs to be accomplished over the next seven days. I also have a monthly overview for big-picture items that need to be tackled (like an oil change).

This form of organization can be a lot and it can still be overwhelming, even if I have my ducks in a row. And, every once in a while, those tasks can really pile up on those lists and a whole new kind of overwhelm develops.

Fear not, as there are still ways to break it down from here. Let me explain.

First, what I’d recommend is going through all of your tasks and categorizing them (i.e. a work list, a personal list, a family list, etc.) From there, go through each subsequent list and determine priority.

You can do this by setting a deadline for each task, and then put every task in order based on what deadline is coming up first. From there, pieces start to fall into place and tasks begin to be eliminated. I do recognize that this is what works for my brain, and may not be what works for yours.

Leo Babauta of Zen Habits has some interesting insight on the topic and examines the importance of how you relate to your tasks. The concept is, instead of letting the tasks be some sort of scary stress, find ways to make them more relatable. Here are some examples that Babauta shares:

  • I’m fully committed to this task because it’s incredibly important to me, so I’m going to create a sacred space of 30 minutes today to be fully present with it.
  • This task is an opportunity for me to serve someone I care deeply about, with love.
  • These tasks are training ground for me to practice presence, devotion, getting comfortable with uncertainty.
  • These tasks are an adventure! An exploration of new ground, a learning space, a way to grow and discover and create and be curious.
  • This task list is a huge playground, full of ways for me to play today!

Finding the best method of creating your to-do list or your task list and the best method for accomplishing those tasks is all about how you relate and work best. It can be trial and error, but there is certainly a method for everyone. What are your methods?

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Op/Ed

Want to move past your burnout? Stop using multiple lists

(EDITORIAL) How my evolving understanding of “burnout” helped me learn an important distinction between being busy and being productive.

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too busy to burnout

When I used to hear the word “burnout” I would picture the freaks from the gone-much-too-soon series, Freaks and Geeks, as they would bum around outside, smoking in between classes. Now when I hear the word “burnout,” I think of myself a few years ago as my brain was being fried by life.

I wasn’t smoking between classes, rather running around like a chicken with its head cut off trying to figure out how to manage all of my tasks at hand. I’d make a to-do list, see everything I had to do, and drown in overwhelm.

I’d spend my days fretting over how busy I was, and nights catching up with friends via phone, talking about how busy I was and how there just wasn’t enough time in the day.

Notice that nowhere in here was I actually doing anything productive. I fell into a vicious hole of being so consumed with how much I had to do, I wasn’t taking the time to do anything but stress.

At first, it made me feel interesting and somewhat important that I had so much going on. I quickly realized that no one cares and it’s not that interesting (I also quickly remembered how much I love to just relax and not have something planned every day of the week).

This is where I learned the of the most important lessons to date – being busy does not equal being productive.

It got to a point where I was running on fumes and eventually had this epiphany that how I was operating was doing nothing to help me. This was in part brought on by seeing someone close to me behave the same way, and I was able to actually look at how defeating it was.

From there, I made it a point to change my tune. Instead of wasting time writing and re-writing to do lists, I challenged myself to make one master to do list and accomplish at least one item upon completion of writing the list. This helped shake off the cobwebs and I was able to feel a bit of weight off of my shoulders.

The ideas surrounding the hustle mentality had me so consumed and all I was doing was hustling my way to nowhere. After feeling the burnout, seeing someone else operate that same way, and seeing that hustle mentality mocked, I was finally able to break free and get stuff done.

And, guess what? I have even more to do now, but feel more calm and collected than ever. I just have to repeat the mantra: Being busy does not equal being productive. Being productive – especially in silence – is so much better and much more rewarding.

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Op/Ed

How any real estate pro can become more assertive

(OPINION EDITORIAL) Being assertive is not the same as being bossy and while most people tell women to be more assertive, lack of assertiveness isn’t gender exclusive. Here are a few tips how to make your presence known.

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assertive broker meeting negotiation team

Merriam-Webster defines assertive as “disposed to or characterized by bold or confident statements and behavior.” I believe assertive behavior is the balance between being passive or aggressive.

You aren’t demanding, but you’re not dismissing your needs either.

Women are often told that they need to be more assertive, rather than passive, and men need to be less aggressive. I’m more of the opinion that assertiveness isn’t gender-specific. I believe every person needs some assertiveness training.

While I may not be an expert in assertiveness, as a freelancer, I have learned to be more assertive. Here are a few of my observations:

  • To be assertive, I had to stop feeling as if my work was unimportant. Call it confidence or self-esteem, but it was a definite turning point for me. I stopped using the word, “just.” I didn’t apologize for bothering people. I simply began stating what I needed to get the job done.
  • I defined what assertive meant to me. For me, it was the ability to stand up for my opinions and needs. This didn’t happen overnight, but it took practice. One of the key things I did was to try and be more assertive in other places, like when I volunteered. That gave me the confidence to stand up for myself in my work.
  • I use “I” statements. “I need to take next Monday off.” “I need more information about this project.” “I cannot do that this week.”
  • I’ve found that part of being assertive is taking the other person at their word and not holding a grudge. Don’t read more into their emotions than what is being discussed. Just because my co-worker hated the last idea I had shouldn’t stop me from exploring new ideas with the team.
  • It is very difficult to change old behaviors. I have mentors and coaches that I talk to about my successes and failures. This has helped me figure out what I’d do differently if I had the chance. Trust me, it isn’t easy to be introspective about the time you blew it, but it’s been very beneficial in all the areas of my life.
  • I’ve apologized when it was appropriate, but I don’t beat myself up, either. The other day, I missed one part of an assignment. In the past, I would have not taken any more assignments as punishment. Instead, I apologized that I missed it and fixed the assignment. Then, I took another block of work and moved on. It was freeing.

Being assertive isn’t easy. But it is very rewarding.

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