What’s Next After NAR’s Clear Cooperation Decision

After nearly a year of debate, the National Association of Realtors took a stance on its Clear Cooperation Policy this week — by adding a new exemption to the policy and leaving some in the industry possibly more confused than before.

The trade group had been getting it from all sides, with the head of the country’s largest brokerage on a public warpath against the policy, the Department of Justice breathing down its neck, and CCP supporters fearful that NAR would cave.

The discussion has revolved around whether the CCP — which requires agents to add a listing to the MLS for syndication within one day of listing publicly — restricts seller choice or provides needed transparency, as constructed.

While both sides have argued on behalf of the consumer, they also each have clear financial incentives. Larger brokerages can promote agent and consumer recruitment and double-end more deals if they’re not immediately exposing listings to other companies; smaller brokerages run the risk of being cut out of the market; and aggregators fear losing access to the listings that are their lifeblood.

The newest tweaks, by the looks of it, have managed to soothe none of NAR’s largest agitators, and in some cases, add to their frustrations and confusion.

“The CCP debate is far from over — it’s simply shifting into a new phase,” said Jared Antin of Elegran | Forbes Global Properties.

What’s changed

NAR put forward this week that the exempted rule provides sellers more flexibility in how their home is marketed while retaining its Clear Cooperation Policy — everybody wins, right?

In truth, the change is a little more involved.

NAR introduced a “delayed marketing exempt listing,” which allows seller agents to enter a listing into the MLS and market it publicly, but keep the listing from syndicating through the IDX feed.

NAR kicked much of the rest of the decision-making down to local MLSes, which will need to implement the changes by the end of September. MLSes will be responsible for determining how long a listing can remain in its “delayed” status, which will dictate the importance of this new exemption.

For a listing to enter a delayed marketing status, agents must submit a seller disclosure and abide by any local MLS mandatory submission requirements.

Sellers and agents also still have the option to list as an office exclusive, which will also require seller disclosure and can only be marketed within one brokerage firm.

You’re a winner, and you, and you…

The policy change has left much of the industry scratching its head, making it hard to determine clear-cut winners and losers — even if some are quick to claim victory.

The most obvious winners are industry analysts like Rob Hahn, who released a lengthy CCP breakdown on his popular Substack, NotoriousROB, and Nexthome CEO James Dwiggins, who hosted a webinar on Wednesday for his faithful followers that reached capacity nearly immediately.

Meanwhile, each side of the CCP debate has carved out positive pieces in NAR’s update.

The loudest voice in the room, Compass’ Robert Reffkin, said in a statement that the change was a “step in the right direction” and indicated an acknowledgement from NAR that CCP restricted seller choice.

But the leader of the country’s largest brokerage was left wanting more, adding that “MLSs shouldn’t restrict how homeowners market their homes at all.”

On the other side of the ledger, Brown Harris Stevens’ Bess Freedman was pleased to see the core of CCP upheld, calling the rule “important for transparency and efficiency.”

“The intention is good, did it need to be changed — maybe”, she said. “The spirit of it should be protected, that’s why I’m happy.”

But in a similar vein with Reffkin’s tepid approval, other CCP supporters wanted to see the trade group take steps to strengthen, not relax, transparency among listing services.

“It would be much better for consumers if everyone could see all the homes for sale on all the real estate sites,” Redfin CEO Glenn Kelman said in an op-ed. “In at least some of those cases, the seller could’ve gotten a higher price via broader exposure, and many homebuyers will wonder why they never saw the home for sale.”

Aggregators mostly held their tongues — Zillow executive Errol Samuelson pointed to a requirement for agents to submit seller disclosures when listing using an office exclusive or delayed marketing exemption as a positive.

“Requiring a formal seller disclosure further underscores the risk of holding listings off-market and that privately listing a property should be the exception, not the rule”, he said in a statement.

(Realtor.com CEO Damian Eales provided such an unambiguously positive comment it sounded more like it comes from NAR itself. “NAR’s new Multiple Listing Options for Sellers policy, a complement to its Clear Cooperation Policy, aims to strike a balance—providing flexibility for sellers, their agents, and MLSs while striving to provide equal access to listings for all,” he wrote).

The varied reactions underscore an industry that is still processing and, similar to the NAR commission changes, probably won’t understand the ramifications of this update for a long time.

“If you talk to three people, you get four interpretations about what this is going to mean to the industry right now,” said Compass agent and American Real Estate Association co-founder Jason Haber.

The biggest losers

In some ways, the most obvious loser is NAR, as it has taken a King Solomon approach and split its CCP baby in half.

Hahn also pointed out that, although the DOJ appeared to take a step back from its investigation into CCP, nothing has fundamentally changed the issues with the rule that the department raised in 2021 and could raise again.

The other most apparent losers are the companies and agents that have already been struggling amid industry consolidation and the expansion of office exclusives.

By leaving the office exclusive loophole open, boutique brokerages still run the risk of not seeing listings on the MLS until they hit delayed marketing or active status — something that may drive consumers and agents into the arms of the companies with more listings.

“It’s clear there is significant momentum around private listings, and we do not believe today’s decision will change that,” a spokesperson for Anywhere Real Estate said.

Meanwhile, newer agents that rely on syndication to market listings to prospective buyers might find themselves with fewer homes to show.

“Agents who depend on listing aggregators to source buyer leads may see a decline if more listings transact during the MLS-only, pre-syndication window,” said Antin.

The ripple effects could be far larger, depending on how aggressive brokerages are in taking advantage of listing exemptions — and how lenient local MLSes are in allowing it.

“I don’t think anyone really knows for sure what the net-net of this is,” Haber said.