Policy IV.1. Limitations permissible if imposed on other media

Text

An MLS may impose any, all, or none of the following requirements on VOWs but may impose them only to the extent that equivalent requirements are imposed on Participants' use of MLS listing data in providing brokerage services via all other delivery mechanisms:

Summary

MLS may impose the following requirements, but only as part of a general rule that affects all forms of distribution,

Action Items: MLS

None.

Action Items: VOW-operating broker

None.

Action Items: Affiliated VOW provider (broker technology/marketing partner)

None.

Questions

None.

Other notes

None.

MLSTesseract Blog Post

Can real estate agents keep secrets?, December 9, 2008
Questions about implications of VOW settlement, November 24, 2008.

Policy IV.1.a. Restricted listing statuses and confidential fields

Text

A Participant's VOW may not make available for search by or display to Registrants the following data intended exclusively for other MLS Participants and their affiliated licensees:

i. Expired, withdrawn, or pending listings.

ii. Sold data unless the actual sales price of completed transactions is accessible from public records.

iii. The compensation offered to other MLS Participants.

iv. The type of listing agreement, i.e., exclusive right to sell or exclusive agency.

v. The seller(s) and occupant(s) name(s), phone number(s) and email address(es), where available.

vi. Instructions or remarks intended for cooperating brokers only, such as those regarding showing or security of the listed property.

Summary

This optional provision allows MLSs to classify some statuses of listings and some fields as confidential, but only if MLS imposes the same limitations on all other means by which brokers might disclose this information to consumers.

Action Items: MLS

  1. Option: Decide whether to impose these optional display restrictions, with the understanding that making them confidential means that brokers cannot disclose them to consumers by any means, even outside the contexts of the VOW. Recognize that there are VERY FEW statuses or fields that brokers will tolerate not being able to disclose to their clients.
  2. Option: If you have not already done so, create a field for “showing instructions” and/or a field for “property access information” that contains confidential information about accessing the property. Classify these fields as confidential.
  3. If MLS chooses to implement option (1) or (2), it should change any “customer output” formats or the like from the MLS system to exclude the confidential field(s) or status(es). It should add the word “CONFIDENTIAL” prominently to any output format including the confidential field(s) or status(es).

Action Items: VOW-operating broker

  1. Obtain from your MLS a list of all fields and statuses, if any, it has classified as confidential under this provision.

Action Items: Affiliated VOW provider (broker technology/marketing partner)

  1. Ensure that your broker client obtains from her MLS a list of all fields and statuses, if any, the MLS has classified as confidential under this provision.

Questions

  1. Taken together with Policy Section III.2., I interpret this to mean that any field that a broker can disclose orally to a client/customer under the MLS rules is eligible for disclosure on a VOW (with the exception of listing address, where the consumer has opted out of that). Is that correct?
  2. If the answer to the previous question is “yes,” can the compensation fields ever be confidential in a state that imposes common-law agency duties on brokers working with buyers? Under the common law, the buyer’s broker would have to disclose the amount and source of any compensation from a third party (i.e., the listing broker) to the buyer, at least orally. If that is the case, presumably the broker could disclose it to her buyer via her VOW. Is that correct?
  3. Do we not have much the same problems with the other fields listed here? Is the buyer not going to be entitled to know the type of listing, seller’s name and contact info, the bonus offer that appears in the agent remarks, etc.? It’s hard to imagine a field in the system that is really confidential from disclosure to the buyer, except perhaps showing instructions and property access information.
  4. Presumably, MLS can pick and choose from among the sub-sections, for example, saying that showing information is confidential but that compensation is not. Is that correct?

Other notes

None.

MLSTesseract Blog Post

Can real estate agents keep secrets?, December 9, 2008
Questions about implications of VOW settlement, November 24, 2008.

Policy IV.1.b. Modification of MLS data; display of other data

Text

The content of MLS data that is displayed on a VOW may not be changed from the content as it is provided in the MLS. MLS data may be augmented with additional data or information not otherwise prohibited from display as long as the source of such other data or information is clearly identified. This requirement does not restrict the format of MLS data display on VOWs or display of fewer than all of the listings or fewer authorized data fields.

Summary

This optional provision allows MLSs to impose some requirements on brokers displaying the listings of other brokers, but only if MLS imposes the same limitations on all other means by which brokers might disclose this information to consumers.

Action Items: MLS

  1. Option: Decide whether to impose these optional display restrictions, with the understanding that doing so means that brokers must abide by them in disclosures to consumers by any means, even outside the contexts of the VOW.
  2. If MLS chooses to implement option (1), it should change any output formats or the like from the MLS system to conform to this requirement. This would include any output format where public record data is displayed along-side MLS listing data.

Action Items: VOW-operating broker

  1. Ascertain whether MLS has imposed these optional display restrictions.

Action Items: Affiliated VOW provider (broker technology/marketing partner)

See "Action Items: VOW-operating broker."

Questions

None.

Other notes

None.

MLSTesseract Blog Post

None.

Policy IV.1.c. Notice regarding data reliability

Text

There shall be a notice on all MLS data displayed indicating that the data is deemed reliable but is not guaranteed accurate by the MLS. A Participant's VOW may also include other appropriate disclaimers necessary to protect the Participant and/or the MLS from liability.

Summary

This optional provision allows MLSs to impose a disclosure requirement on brokers displaying the listings of other brokers, but only if MLS imposes the same limitations on all other means by which brokers might disclose this information to consumers.

Action Items: MLS

  1. Option: Decide whether to implement this optional requirement, recognizing that doing to imposes the requirement on all disclosures by brokers of listing data to consumers, whether in the VOW context or otherwise.
  2. If MLS chooses to implement option (1), it should change any output formats or the like from the MLS system to conform to this requirement.

Action Items: VOW-operating broker

  1. Ascertain whether your MLS has adopted this provision.

Action Items: Affiliated VOW provider (broker technology/marketing partner)

See "Action Items: VOW-operating broker."

Questions

  1. Many MLSs use alternatives to “deemed reliable but not guaranteed.” Presumably an MLS could impose on all listing displays (whether VOW or otherwise) the disclaimer it views as most appropriate. Is that correct?

Other notes

None.

MLSTesseract Blog Post

None.

Policy IV.1.d. Identification of listing broker

Text

Any listing displayed on a VOW shall identify the name of the listing firm in a readily visible color, and reasonably prominent location, and in typeface not smaller than the median typeface used in the display of listing data.

Summary

This optional provision allows MLSs to impose a disclosure requirement on brokers displaying the listings of other brokers, but only if MLS imposes the same limitations on all other means by which brokers might disclose this information to consumers.

Action Items: MLS

  1. Option: Decide whether to implement this optional requirement, recognizing that doing so imposes the requirement on all disclosures by brokers of listing data to consumers, whether in the VOW context or otherwise.
  2. If MLS chooses to implement option (1), it should change any output formats or the like from the MLS system to conform to this requirement.

Action Items: VOW-operating broker

  1. Ascertain whether your MLS has adopted this provision.

Action Items: Affiliated VOW provider (broker technology/marketing partner)

See "Action Items: VOW-operating broker."

Questions

None.

Other notes

None.

MLSTesseract Blog Post

None.

Policy IV.1.e. Limited number of listings returned in search

Text

The number of current or, if permitted, sold listings that Registrants may view, retrieve, or download on or from a VOW in response to an inquiry may be limited to a reasonable number. Such number shall be determined by the MLS, but in no event may the limit be fewer than 100 listings or 5% of the listings in the MLS, whichever is less.

Summary

This optional provision allows MLSs to impose a limit on the number of listings returned by a search, but only if MLS imposes the same limitations on all other means by which brokers might disclose this information to consumers.

Action Items: MLS

  1. Option: Decide whether to implement this optional requirement, recognizing that doing so imposes the requirement on all disclosures by brokers of listing data to consumers, whether in the VOW context or otherwise.

Action Items: VOW-operating broker

  1. Ascertain whether your MLS has adopted this provision.

Action Items: Affiliated VOW provider (broker technology/marketing partner)

See "Action Items: VOW-operating broker."

Questions

None.

Other notes

None.

MLSTesseract Blog Post

None.

Policy IV.1.f. Require listing agent to be identified on listings

Text

Any listing displayed on a VOW shall identify the name of the listing agent.

Summary

This optional provision allows MLSs to impose a requirement that the listing agent be identified on listings, but only if MLS imposes the same limitations on all other means by which brokers might disclose this information to consumers.

Action Items: MLS

  1. Option: Decide whether to implement this optional requirement, recognizing that doing to imposes the requirement on all disclosures by brokers of listing data to consumers, whether in the VOW context or otherwise.
  2. If MLS chooses to implement option (1), it should change any output formats or the like from the MLS system to conform to this requirement.

Action Items: VOW-operating broker

  1. Ascertain whether your MLS has adopted this provision.

Action Items: Affiliated VOW provider (broker technology/marketing partner)

See "Action Items: VOW-operating broker."

Questions

None.

Other notes

None.

MLSTesseract Blog Post

None.

Policy IV.2. Other MLS rule options (data sources and passwords)

Text

An MLS may also impose the following other requirements on the operation of VOWs:

a. Participants displaying other brokers' listings obtained from other sources, e.g., other MLSs, non-participating brokers, etc. shall display the source from which each such listing was obtained.

b. A maximum period, no shorter than 90 days and determined by the MLS, during which Registrants' passwords are valid, after which such passwords must be changed or reconfirmed.

Summary

These are optional provisions MLSs may impose on broker VOWs but which have no analog in traditional media.

Action Items: MLS

  1. Option: Decide whether to implement sub-section a.
  2. Option: Decide whether to implement sub-section b.

Action Items: VOW-operating broker

  1. Determine whether each MLS in which you operate has implemented either of these options.

Action Items: Affiliated VOW provider (broker technology/marketing partner)

See "Action Items: VOW-operating broker."

Questions

None.

Other notes

None.

MLSTesseract Blog Post

None.

Policy IV.3. Options for regulating co-mingling

Text

An MLS may not prohibit Participants from downloading and displaying or framing listings obtained from other sources, e.g., other MLSs or from brokers not participating in that MLS, etc., but may require either that (i) such information be searched separately from listings obtained from other sources, including other MLSs, or (ii) if such other sources are searched in conjunction with searches of the listings available on the VOW, require that any display of listings from other sources identify such other source.

Summary

As a practical matter, this section appears to allow MLSs to prohibit "co-mingling" of listings from sources other than the MLS (including other MLSs), with those from the MLS.

Action Items: MLS

  1. Option: Decide whether to implement sub-section i.
  2. Option: Decide whether to implement sub-section ii.

Action Items: VOW-operating broker

  1. Determine whether each MLS in which you operate has implemented either of these options.

Action Items: Affiliated VOW provider (broker technology/marketing partner)

See "Action Items: VOW-operating broker."

Questions

  1. How would implementing this provision impact "roll-up" sites like REMAX.com.

Other notes

None.

MLSTesseract Blog Post

None.