The Journal touched on pocket listings yesterday – excerpts:
Real-estate agents are selling more homes to select customers while bypassing the public market, a move that squeezes supply tighter for many buyers when inventory is already near record lows.
In the vast majority of transactions, an agent lists a home for sale on a local database and markets the property widely to drum up interest and get the best price. But in certain cases, a broker will show an unlisted property to a small circle of potential buyers more exclusively, often in hope of getting a deal done quickly.
These private sales are known as pocket listings, or whisper listings. They have been around for many years. But they are on the rise now even though the National Association of Realtors adopted a rule last year aimed at discouraging their use following complaints from some of its members.
Pocket listings persist in part because they benefit big brokerages, which can shop listings in-house and advertise to potential clients that they have properties that aren’t available anywhere else.
On brokerage Compass Inc.’s website, a search for active listings or those coming soon in San Francisco pulled up 1,320 online listings as of midday Tuesday. The website also said 105 listings in the city weren’t publicly available but were available through a Compass agent.
Compass is known for the in-house Private Exclusives program, and it was one of the main reasons I joined. If any big brokerage were to mount a strong in-house campaign, they could commandeer the market – especially if they had the #1 market share. I wouldn’t recommend it for my sellers, but it could be a boost for my buyers.
Last year I did four off-market sales with my buyers, and only one was with a Compass listing agent. But I haven’t even sniffed an opportunity this year. Why? Because in 2021 every seller and listing agent wants to go on the open market to see if they can get bid up. They’ve heard the stories of sales going for hundreds of thousands over list, and they want their chance at glory.
We still have a Private Exclusives section, but every time I contact a listing agent who has a home listed there, they say they are going on the open market (there is some confusion on what the PE program is supposed to be). I’m sure there are off-market deals happening, but I don’t think they are any more than normal – and they have been around since the beginning of time.
In Northern California, the Compass presence is huge, and I’ve been told that management there is really pushing the Private Exclusives. But in the WSJ article, they mentioned that only 8% of the listings were Exclusives, and my guess is that many of those are heading for the open market.
Another unintended consequence of the frenzy? Slowing down the off-market sales!
The home-selling business is known for being the Wild, Wild West.
There are a few rules and ethics filed away in a drawer somewhere but there is no enforcement unless you do something really bad, like this guy – who only lost his real estate license a couple of months AFTER he was convicted and sentenced to three years in jail.
So when the Clear Cooperation Policy went into effect in May that stipulated an agent could input a listing into the MLS as ‘Coming Soon’, as long as they didn’t show it to anyone until it was marked as an active listing, many of us scoffed.
But apparently for our local association, this is the hill to die on:
During the short-sale era, agents defrauded banks out of millions of dollars, and all the association did was to produce a video of realtors talking about how to do short sales properly.
Bidding wars are regularly abused by listing agents who tilt the table in favor of themselves or a favored realtor, and the association doesn’t offer any solutions.
And the Clear Cooperation Policy still allows off-market listings to be sold within the same brokerage – and never offered to outside agents or the public.
There are plenty of more egregious violations of the consumers faith and trust, so why is the association selecting this rule to be the one to enforce, and issue heavy fines? They are dependent upon other agents ratting out the violators, so it’s not like there will be a MLS police, but will they start enforcing any other rules – and issuing heavy fines – while they are at it? The agents who get convicted of other violations only get a letter in their file for six months.
If agents want to show their Coming Soons, they can always join the San Diego Association of Realtors instead, where the fines are limited to $500. Or if the purpose of your Coming Soon is to test the market, just enter your new listing as Active instead and answer your phone for a couple of days and you will have ample evidence of how the market feels about it.
Here’s another tepid response to an issue that bugs consumers and agents alike:
Just when we thought there was a set policy on Coming Soon listings, they change it again.
The IDX is the agreement among realtors to share each others’ listings on our own personal websites, which was a great idea before search portals. But IDX was written off as a waste of time because now consumers have found better options like Zillow.
Are they going to change to their realtor’s inferior website, just to see the Coming Soons?
Wasn’t the idea of Coming-Soon-listings-on-the-MLS supposed to give realtors the distinct advantage of controlling the distribution? Oh well, maybe that was just me who saw that advantage, because it sure wasn’t considered in this decision. They are all going to be out in the open now, and we might as well let Zillow have them too.
The water is already muddied by Zillow allowing the Premier Agents to do their own Coming Soon listings separate from the MLS, and by agents ignoring the rules on social media. Who knows if agents are flagrantly abusing the rules or just forgot them already (more probable) but I see the old standard Coming-Soon pitches on social media now that are supposed to be inputted into the MLS by the next day – but they show up a week or two later, just like before.
Here are the new/updated rules for those who care:
No mention of Private Exclusives – which are allowed by N.A.R.’s Clear Cooperation Policy – where any agent in the same brokerage can sell an in-house listing without any MLS or public exposure.
I don’t get the No Showings policy either. Do they really think an agent is going to deny showing their Coming-Soon listing to a buyer who contacts them directly and promises to pay full-price cash? I’ve already showed Coming Soons listed by other agents to my buyers, and the listers didn’t think twice about it. If they had a chance to double-end the commission, wouldn’t they just pay the fine and be on their way? The max fine is only $2,500.
This whole topic was a mess, and now giving buyers direct access to the list is not only going to tempt them to go directly to the listing agent (which is opposite to NAR’s intent) but consumers will also get a better look at how disorganized and unruly we are.
Our MLS has been publishing the Coming Soon listings for almost two months now, and agents are using the feature. The list above has 17 out of 59 (27%) of the new listings marked as Coming Soon – the most I’ve seen in one day.
They show up as a ‘new listing’ on the agent hotsheets on the day they are inputted onto the MLS, but the homes are not allowed to be shown until they are ‘active’. Usually the remarks and photos are brief too, which is understandable – they aren’t ready yet. They are coming soon.
The day the listing goes active is determined in advance, and the MLS automatically changes the status on that day. These hot new listings that haven’t been seen yet are now full of photos, videos, and descriptive remarks, but they appear at the top of our hotsheets as a ‘Misc. Change’, which isn’t the same as being on the New list. The only indication that these are fresh listings are the days-on-market being zero:
The strategy is still a bit murky for me. The intent is to build anticipation among agents only, but if the photos & remarks are brief and I can’t show & sell it until some day in the future, it’s not that interesting. But it does give agents a unique advantage to receive advance notice on new inventory before the search portals get it.
Will private websites get a hold of the Coming Soons and publish them for consumers? Yes, and it’s already happening.
Will listing agents be tempted to show their Coming Soon listing prior to it being marked an active listing? Probably, so buyer-agents should call the listing agents every time they see a contender, which will make the listing agent wonder why they are bothering with Coming Soon when they keep getting requests to show it early.
The new Coming Soon feature in our MLS has been available since Tuesday.
Since then, there have been 32 new listings of houses between La Jolla and Carlsbad. Eight of the 32 have been inputted as Coming Soon (not active listings).
The common reason for having Coming Soons is to try out the price, and to build anticipation among realtors like a movie trailer does with moviegoers.
My random thoughts and observations:
Because the policy forbids any showings of the homes, the MLS agents will want to know when showings will be available. But the MLS doesn’t provide a box for that date, and none of the eight agents mentioned a date either. We know that Top Gun 2 is being released on December 23rd – which builds anticipation.
Four listings include the showing instructions as if they don’t know the policy, or are openly flaunting it. Will they allow showings today while listed as Coming Soon? I don’t know, but it looks like it.
Three listings had no photos, which would be expected of a listing that is in the works – it would be natural to follow with photos once the listing is ready. But it’s hard to build anticipation without visual aids. The movie trailers come with photos and video:
But the big question is what will the listing agents do when an offer is submitted during the Coming Soon period, subject to inspection? There are no written rules in the policy, so it is an individual choice.
Do you tell the buyer’s agent to wait until it’s active? Or do you take it to the sellers and negotiate a deal?
When do you let the buyer see the interior? Do you show before coming to an agreement, which would be smart but against the rules? Or do you make the deal, and then show them the interior and stay within the rules (it would be a pending listing now, not coming soon). Or once you receive an offer, do you flip the listing into active status so every agent and buyer can have a shot?
We have no rules, and no precedent.
We should ask the listing agents to answer these questions in the listing, so agents know what to expect.
If we don’t, here’s what will happen.
Buyer: Thanks for that coming-soon listing, it’s exactly what I want. Can I see it?
Buyer: Can I buy it?
Agent: I don’t know.
Buyer: Send them a full-price offer.
Agent: Ok, but I’m not sure what will happen.
Is that sequence good for anyone involved?
While the MLS was cordial to respond to requests from brokerages to create a Coming Soon category, we need to go further. Let’s clearly define the rules of engagement, for everyone’s sake.
Yesterday, we closed our fourth off-market buyer sale of the year (Richard, 1 and Jim, 3).
Here’s how they happened:
Reaching out to other agents working the neighborhood.
Saw one in the Compass Coming Soon section (which was public).
Saw one on Zillow as a Coming Soon.
I haven’t been a proponent of this method for my sellers. But pursuing off-market inventory is a good way for buyers and their agents to increase their choices.
One challenge to completing an off-market sale is that the seller will use the idea of going on the open market as a negotiating tool, and they are prone to beating you over the head with it. But at least the chances of getting into a bidding war are greatly reduced.
The new Clear Cooperation policy allows for in-house sales, which is legitimizing the off-market sale. Brokerages everywhere are being forced to develop their own exclusive off-market platforms.
Now we have Coming Soons being uploaded to our MLS only (and not to the search portals).
Our MLS is going to provide a Coming Soon feature, which will fluster the agents who say that the Coming Soons build anticipation (like a movie trailer) and test pricing, but who then use the concept to circumvent the MLS and instead advertise directly to the consumer in hopes of double-ending the commission.
The Coming Soon status launches in San Diego Paragon Tuesday, May 19th. From that day forward, when entering listings for sale in San Diego Paragon, you may choose between Active and Coming Soon.
To prepare for this launch, Paragon will undergo scheduled maintenance from 10:00 PM PT Monday, May 18th to 6:00 AM PT on Tuesday, May 19th – a total of eight hours. Paragon will be unavailable during this time. Below is a brief video to help you understand the details of this status.
How does Coming Soon work?
Coming Soon allows listing agents to take up to 21 days to stage the property, take interior photos, prepare it for showings, and so on, without Days on Market accruing.
How is Coming Soon similar to Active?
– Marketing is allowed in both statuses, so long as Coming Soon listings are clearly marked as Coming Soon.
– Both Coming Soon and Active listings are fully displayed to other professional users of MLS systems.
– The listing agent offers a commission on both Coming Soon and Active listings.
How is Coming Soon unique?
– Coming Soon listings have limited distribution: they will not go out from the MLS to portals like Zillow, Trulia, and Realtor.com, or to IDX broker and agent websites.
– Showings are not permitted in Coming Soon.
– Because of these limitations, Days on Market do not count in Coming Soon.
It has never been made clear to realtors why the Clear Cooperation policy is needed in the first place – or agents didn’t understand or agree with its purpose. The new way to get around the rule is for agents to advertise their coming-soon listings with no address – instead, they just include the neighborhood or tract.
From the wsj.com:
The real-estate industry’s largest trade association, the National Association of Realtors, and two of its affiliates are facing a federal antitrust lawsuit challenging a new rule that effectively bans NAR members from marketing homes privately, or “off-market.”
The lawsuit was filed Monday in the U.S. District Court for the Northern District of California by Top Agent Network, a San Francisco-based, members-only platform for real-estate agents. The suit names as defendants the NAR, the California Association of Realtors and the San Francisco Association of Realtors. It seeks unspecified damages and to reverse NAR’s newly enacted “Clear Cooperation Policy,” which went into effect May 1. The new policy requires NAR members to share their listings through the local multiple listings service rather than shopping them privately to a few contacts, a practice increasingly preferred by wealthy and high-profile sellers. Members who violate the policy face punishment, including fines.
TAN, launched in 2010, is a members-only networking and communication platform for real-estate agents who can show that they are in the top 10% of producers in their geographic area, according to founder David Faudman. Its roughly 10,000 members, who pay between $475 and $675 in annual dues, frequently use the platform to share information about off-market listings, which are for sale but not in the MLS. That function is now against NAR rules, said Mr. Faudman. “We’re concerned that this could put a huge damper on TAN, to the point that it destroys the business,” he said.
Since the Clear Cooperation Policy was enacted, Mr. Faudman said some TAN members—most of whom are also NAR members—have told him they don’t plan to renew their TAN memberships for fear of penalties from NAR. He claims the new policy is an attempt by NAR to quash alternative marketing platforms like his. “It’s quite clear to us that they’re trying to eliminate competition,” he said.
In some markets, like the San Francisco Bay Area, off-MLS listings make up a significant portion of business, agents said. Silicon Valley real-estate agent Billy McNair of Compass said that in any given year, roughly one-third of his sales takes place off-market. Some buyers pay a premium to buy a house that hasn’t yet hit the market.
The new N.A.R Clear Cooperation Policy takes effect on May 1st.
Next Monday, the CRMLS will begin a Coming-Soon category in the MLS for agents only. The listings can only be in the coming-soon category for 21 days, and no showings are allowed.
But the feature won’t be part of the San Diego MLS.
Realtors in San Diego County are split between one faction that wants to join CRMLS (which is the MLS provider for most of Southern California), and the other association of realtors who wants to be on their own. The compromise was a data-sharing agreement that allows both MLS systems to facilitate agent access to the county-wide inventory. But because the SDAR won’t cooperate, there won’t be a Coming-Soon category developed in the San Diego MLS. But it is coming to the rest of Southern California next week – but for agents only, and no showings so I guess it’s an FYI to the realtor community.
So there won’t be much change to the casual observer in San Diego County.
Multiple agents asked the question, “How can I sell my Coming-Soons if I can’t show them?”, demonstrating how oblivious some realtors are on why the new rule was created in the first place – to stop agents from doing off-market deals, and, instead, share all their listings with every realtor.
I sell yours, and you sell mine!
But realtors do have the option to take the listing as an office exclusive and distribute it among agents within their brokerage for days or weeks before putting it on the open market. It is inevitable that 20% to 30% of our listings will be sold off-market, and they will be the choice properties that don’t need mass exposure to find a buyer.
Why will these off-market deals persist, when NAR is trying to prevent them?
Because the industry looks the other way.
As long as the inventory is tight, agents will be motivated to keep their listings within the club – at least for the first few days or weeks while they get it ready for market. If it sells prior to going onto the MLS, then great – and no risk of getting the corona from all those strangers coming around.
Wells Fargo is ‘suspending’ their jumbo-loan funding of all correspondents today, and the others (like Chase) are sure to follow. It’s one thing to stop funding loans for mortgage brokers, but to shut down the credit lines to the big players like Loan Depot, Quicken, and Guaranteed Rate is going to effectively end the jumbo-loan market as we know it.
Expect that this will become the industry trend, and blamed on the corona.
But the root cause is the industry contraction that has been going on for a couple of years now as sales decline and there isn’t enough business to go around.
Wells Fargo will still be funding jumbo loans. You’ll just have to get them directly from Wells Fargo.
You’ll be able to purchase the best homes for sale. You’ll just have to buy them from the listing agent.
The Clear Cooperation Policy is still scheduled to begin on May 1st, and listing agents will either have to input their listings directly onto the MLS within 24 hours of any public advertising, or sell them in-house.
In a desperate, fearful environment, take a guess at which will be the favorite.
We can predict how the real estate market will behave as this country gets a grip on handling the coronavirus (we’re not close yet). During the last crisis, the first buyers to jump in were those who weren’t concerned about timing the market, they just needed a house – and the 2013 market exploded well before the data said it should have.
The first-timers will be fueled with down payments from parents or grandparents, and with very few comps available to the contrary, they will just pay the seller’s price to get ‘er done this summer. It is certain that the corona fright will be the latest reason to hurry up and hunker down in a better home, and if the Fed can goose the MBS market and keep mortgage rates in the mid-3s, the market will come out fast. If rates are in the mid-4s, then it will be a slower ascent.
Broker management will encourage agents to keep those hot new listings in-house. Listing agents will want to be a hero within the office and get acknowledged at the next sales meeting for selling off-market. Office Exclusives will be sold to sellers as a price-discovery device, but when a few agents in the office want to give their waiting buyers an early preview, sellers will oblige. Surprise – we have an offer! The next thing you know we have a deal – and the sellers are grateful that they didn’t have to be bothered with open house or strangers prancing through with little or no notice.
Civility, and fiduciary, in our society was crushed by the quote in the movie Wall Street.
‘Greed is Good’.
Expect it to be on full display once the corona is over. Or sooner:
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