BROKER RISK MANAGEMENT
WEEKLY PRACTICE TIP
Advertising Other Brokers’ Listings – IDX Rules
Q: I see other agents advertise the listings of other brokerages. Sometimes it is just one listing. Other times it is a large number of listings in the MLS. I am confused. What are the rules as to when and how I can advertise the listings of another broker?
A: For starters, only the broker with a Listing Agreement with seller may advertise the property for sale. For example, the MLS Model rules (adopted by most MLS’s) prohibit such practices in Rule 12.8 “Advertising of Listing Filed with the MLS”. “A listing shall not be advertised by any Participant or Subscriber, other than the listing broker, without the prior consent of the listing broker… ”
There is an exception for authorized downloads of MLS listing data per the IDX protocols approved by NAR and MLS rules. But, IDX downloads must meet specific criteria and do not contemplate advertising individual listings.
What is IDX? Internet Data Exchange (“IDX”) is an NAR-mandated Internet policy which allows MLS Participants to electronically display MLS listings on websites and mobile applications that those participants “control,” typically meaning websites of the broker and their agents who are MLS participants and subscribers.
Through IDX and the MLS Rules, brokers give each other consent to display each other’s listings on the Internet. Under the IDX rules, which are incorporated into the CAR Model MLS Rules, consent for such display is presumed unless a listing broker affirmatively notifies the MLS that the listing broker refuses to permit display of their listings. This refusal can be either on a blanket basis or listing-by-listing. NOTE: But if a broker refuses to permit the display of its listings on a blanket basis, then that broker and their agents may not download the MLS data of other brokers.
IDX in the CAR Model MLS Rules: The C.A.R. Model MLS Rules provide that:
1. The downloaded and displayed IDX listings must identify the name of the listing broker and agent in a manner designed to easily identify such listing broker and agent; that is, in a reasonably prominent location and in a readily visible color and typeface not smaller than the median used in the display of listing data.
2. MLS’s must allow for active and sold listings to be downloaded for display. But, individual MLS’s may authorize the download and display of other categories of listings such as “pending,” “withdrawn,” etc.
3. Not all listings from the MLS are required to be displayed as long as any exclusions from display on a broker or agent’s website are based on objective criteria (e.g., type of property, listed price or geographic location).
4. No confidential information fields can be published, and none of the information displayed may be modified.
5. The websites must post the date of the most recent update;
6. MLS participants have to indicate on their electronic displays that the information being provided is for “consumers’ personal, non-commercial use and may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing;”
7. Those publishing IDX downloads must notify the MLS prior to displaying IDX information, and make their sites accessible to the MLS and MLS participants for monitoring purposes; and,
8. Local MLS’s have discretions to modify certain of these IDX rules.
For detailed information on IDX and MLS rules, see the CAR Legal Memo:
“Internet Data Exchange (IDX)” at http://www.car.org/legal/internet-folder/idx/
PRACTICE TIPS:
1. If you see another broker advertising your listings, or your company’s listings, without your broker’s permission and not in compliance with IDX rules, notify your broker who should send a “cease and desist” letter. Many such advertisements appear on Internet sites, such as Craigslist.com.
2. If the agent who is advertising your listings without permission and in violation of IDX rules is a MLS member, this would be a MLS violation. If that broker is a member of the local AOR, this could also be a Code of Ethics violation. In addition, this could be a CalBRE license violation for making a “substantial misrepresentation.” Finally, there could be civil liability and monetary damages for engaging in an “unfair business practice” as prohibited by the Business and Professions Code.
3. Brokers and agents should be careful to comply with IDX and MLS rules when publishing IDX downloaded listings.
4. Check with your local MLS and their MLS rules to be certain which IDX rules apply to your MLS’s IDX downloads.
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