The last thing the National Association of Realtors needs is another controversy consuming the time and energy of its members.

But less than a year after the NAR’s historic settlement of lawsuits tied to agent commissions, yet another controversy is roiling the real estate industry, this time over the NAR’s four-year-old Clear Cooperation Policy (CCP), otherwise known as the anti-“pocket listings” rule.

The CCP, which attempts to tamp down on private home sales not listed on local MLSs, was the center of controversy at the NAR’s recent annual conference, NXT, where critics once again called for abolishment of the rule and where the NAR’s governing board once again refused to take further action on the issue.

One thing was made clear by the recent intra-industry scuffle: Controversy over the NAR rule, now the target of a lawsuit filed by the upstart Top Agent Network (TAN), isn’t going away any time soon.

New Hampshire hasn’t escaped the debate over pocket listings – with both supporters and critics claiming the issue is about fairness.

To supporters of CCP, it’s about buyers and buyer agents getting a fair chance to review and bid on homes for sale. Ultimately, CCP promotes transparency and competition that benefits everyone, including sellers, supporters say.

But to critics of Clear Cooperation, it’s about some sellers’ right to keep transactions private, for whatever reasons, if they so wish. Ultimately, sellers shouldn’t be forced, via seller agreements, to list their home sales on MLSs, say critics, many of whom work with high net-worth clients or work at large brokerage firms.

“I can see both sides,” said Stephan Morrissey of Allison James Estates & Homes in Nashua. “It’s not a clear-cut situation. There are gray areas.”

Caught in the Middle

To an extent, some MLSs are caught in the middle of warring factions within the industry.

The NAR’s anti-pocket-listings rule applies to all NAR members and MLS NAR owns through its local Realtor associations.

Technically, PrimeMLS Inc., based in Concord, is an independent company that supports listings throughout New England and much of New York. But it’s owned by a group of regional NAR-tied boards – and so it is complying with CCP.

“We do enforce the rule,” said Chad Jacobson, chief executive of PrimeMLS. “It’s the law of the land.”

That law of the land may command PrimeMLS’s allegiance to CCP. But Jacobson said his organization is fully aware of the controversy the rule has stirred within the industry.

“It’s a very divisive issue, no doubt,” he said. “There are two ends of the [argumentative] spectrum – it’s about leveling the playing field for all buyers and it’s about sellers’ rights.”

Supporters Cite Fairness, Fair Housing

Joanie McIntire, president of the New Hampshire Association of Realtors and an agent at Coldwell Banker J. Hampe Associates, said the rule is indeed about fairness to buyers and their agent representatives.

“It makes them feel they’re getting a fair chance at buying a home,” she said. “It makes sure everyone is treated fairly.”

And being treated fairly isn’t just a sentiment. It’s also about complying with federal fair housing laws meant to crack down on discrimination against Blacks and other others who historically have suffered from bias within the real-estate industry.

But McIntire stressed that CCP doesn’t help just buyers and buyer agents. The rule also benefits sellers, who get more perspective buyers to bid on their homes and potentially drive up home-sale prices.

In the end, sellers always have the option of “doing what they want” when it comes to keeping sales private – and that may include not feeling obligated to list sales on MLSs, she said.

Critics Say Sellers’ Rights at Stake

While saying he can see both sides of the CCP debate, Morrissey of Allison James Estates & Homes in Nashua said he generally opposes the rule if it means reducing the rights of some sellers to keep sales private.

“You have to have some leeway,” he said. “Sellers do have rights.”

Such sellers tend to be more affluent and want their home sales to be kept more exclusive –without a lot of potential buyers trouping through their houses or condos. Sometimes, sellers are also well-known public figures who simply want to keep their sales as private as possible for as long as possible.

There are also circumstances in which deals, for whatever reasons, come together fast – before there’s even a chance to list a sale on an MLS, Morrissey notes.

Such unexpected quick sales happen all the time, said Morrissey, who notes he’s had more than his share of deals being completed sooner than expected.

“It’s not about withholding information from anyone,” he said.

In the end, Morrissey said there’s just too many scenarios in which the CCP isn’t practical, thus making the rule enforceable in too many instances.

Many others across the country agree with Morrissey’s sentiments, most famously the CEO of big residential brokerage Compass Inc., Robert Reffkin, who has blasted CCP as an anti-seller rule.

Prosecutors Hover in the Background

Hovering in the background of the debate over Clear Cooperation is the issue of transparency – and the U.S. Justice Department’s recent crackdown on real-estate agent commissions.

One of the key charges against the old commission system was that it was non-transparent and monopolistic by nature.

The last thing the NAR wants is yet another controversy involving accusations of non-transparency, this time over exclusive homes sales deliberately kept secret from the vast majority of buyers and their agents, industry officials say.

Another issue informing the CCP debate, at least in this part of the country: the nature of New Englanders.

“I think the rule kind of sticks in the craw of independent-minded Yankees,” said PrimeMLS’s Jacobson. “They don’t like being told what they can and can’t do.”