Comments regarding optional provisions of VOW rules I – “Parity Options”

As MLS boards of directors consider which optional VOW rules to adopt, here are our thoughts on them.

There are two groups of optional rules (references here are to the model VOW rules published on NAR’s site). The first group, Sections 19.15 – 19.19, consists of rules that MLSs may impose on VOWs, but if it imposes them on VOWs, it must also impose them on all other disclosures of listing information by brokers to consumers, even oral disclosure. We’ll call these “Parity Options,” because if adopted, they impose parity on traditional and VOW disclosures of data. The second group, consisting of Sections 19.20-19.25, provides options that MLSs may adopt that apply only to VOWs. We’ll call these “VOW Only Options.” I’ll address Parity Options in this post and VOW Only Options in the next.

Parity Options

The note relating to Sections 19.15-19.19 states “if any of the following sections are adopted, an equivalent requirement must be imposed on Participants’ use of MLS Listing Information in providing brokerage service through all other delivery mechanisms.” (See Section IV of the VOW Policy for the basis for this requirement.)

We think it’s confusing even to include these sections in part 19 of the model rules. Our recommendation is to put these sections, if any are adopted, in the section of MLS rules relating to distribution and reproduction of listing data (Section 12 in the NAR general model rules (see the NAR Handbook on Multiple Listing Policy for details)). That requires slight tweaking of the language – we’ve helped several MLSs do this – contact me if you have questions. MLSs taking this step make it clear to everyone that these rules apply to all brokers in all circumstances.

Here then are the Parity Options.

Restricted fields and statuses

Section 19.15: A Participant’s VOW may not make available for search by, or display to, Registrants any of the following information:

a. Expired, withdrawn, or pending (“under contract”) listings.

b. The compensation offered to other MLS Participants.

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

d. The seller’s and occupant’s name(s), phone number(s), or e-mail address(es).

e. Instructions or remarks intended for cooperating brokers only, such as those regarding showings or security of listed property.

f. Sold information

(Important Note: If sold information is publicly accessible in the jurisdiction of the MLS, Subsection19.15 (f) must be omitted.)

(See Section IV.1.a of the VOW Policy for the foundation of this rule.) How many of these statuses and fields can actually be prohibited from disclosure to consumers in general, even orally? (See my earlier post on this issue.) The MLS may be able to fashion general rules regarding disclosure circumstances. For example, MLS might permit disclosure of off-market listings only for purposes of supporting the valuation of a subject property (CMA, BPO, or appraisal). MLSs should think carefully before imposing any of these requirements, because they impact all brokers and all media.

Any fields or statuses designated as restricted here should not be available on the MLS system in “customer report” formats, and agents should not be able to email them out of the MLS system to their customers/clients.

No changing other broker’s content

Section 19.16: A Participant shall not change the content of any MLS Listing Information that is displayed on a VOW from the content as it is provided in the MLS. The Participant may, however, augment MLS Listing Information with additional information not otherwise prohibited by these Rules or by other applicable MLS rules or policies as long as the source of such other information is clearly identified. This rule does not restrict the format of display of MLS Listing Information on VOWs or the display on VOWs of fewer than all of the listings or fewer than all of the authorized information fields

(See Section IV.1.b of the VOW Policy for the foundation of this rule.) This seems like a no-brainer. I guess I always assumed this was at least implied, if not overtly stated, in every MLS’s rules. I can’t think of a down-side to adopting.

Accuracy disclaimer

Section 19.17: A Participant shall cause to be placed on his or her VOW a notice indicating that the MLS Listing Information displayed on the VOW is deemed reliable but is not guaranteed accurate by the MLS. A Participant’s VOW may include other appropriate disclaimers necessary to protect the Participant and/or the MLS from liability.

(See Section IV.1.c of the VOW Policy for the foundation of this rule.) We cannot think of a down-side to adopting this requirement. We have advised clients that there may be better disclaimers than “deemed reliable but not guaranteed,” and I expect NAR would not object to different wording that was substantially equivalent. MLS should make sure that the legend it requires also appears on any customer handout formats from MLS and on emails that agents can send out of the MLS to customers/clients. (Remember the parity requirement.)

Listing broker and agent identification

Section 19.18: A Participant shall cause any listing that is displayed on his or her VOW to identify the name of the listing firm and the listing broker or agent in a readily visible color, in a reasonably prominent location, and in typeface not smaller than the median typeface used in the display of listing data.

I read the policy as permitting the MLS to require display of the listing brokerage name, require display of the listing salesperson’s name, or both. The model rules collapse them into the same paragraph, but I think the MLS could strike the references to “or agent” and have this provision require only that the listing broker be identified. (The VOW Policy treats listing broker in Section IV.1.d and listing agent in Section IV.1.f.) MLS should make sure that it employs the approach it selects on any customer handout formats from MLS and on emails that agents can send out of the MLS to customers/clients. (Remember the parity requirement.)

Limit on number of listings displayed

Section 19.19: A Participant shall limit the number of listings that a Registrant may view, retrieve, or download to not more than ___ current listings and not more than ___ sold listings in response to any inquiry.

(Note: The number of listings that may be viewed, retrieved, or downloaded should be specified by the MLS in the context of this rule but may not be fewer than 100 listings or 5% of the listings in the MLS, whichever is less.)

(See Section IV.1.e of the VOW Policy for the foundation of this rule.) I can’t really think of any major downside to imposing this provision. If your MLS has at least 2,000 listings in it, the smallest number you can impose is 100. Note that if your system allows agents to set up a “prospect search” or similar function that keeps consumers updated about listings that match their criteria, that function should never deliver a single report to the consumer consisting of a larger number of listings than is permitted in your rule. (I suspect it would be permissible for the consumer to have a cumulative “favorites” or “listings viewed” list that exceeded this maximum number, but if it’s ok for the MLS system to do that, then it’s ok for VOWs to do it, too. (Remember the parity requirement.))

Comments invited

I invite readers to contribute their own comments. The more the merrier!