The National Association of Realtors’ new compromise policy on pocket listings doesn’t look like it’s going to end the feud over when seller agents must post their listings on multiple listing services.

A number of New Hampshire real estate industry players, including the all-important statewide multiple listing service, Concord-based PrimeMLS, indicate they welcome NAR update and expect to abide with the trade group’s recently announced “Multiple Listing Options for Sellers” policy.

But other local and national figures are expressing disappointment with NAR’s new option for sellers who want their home transactions kept as private as possible. They say NAR is ultimately keeping in place the controversial Clear Cooperation Policy that requires seller agents to list sales on MLS sites if they advertise a home via other media channels.

A Long-Running Feud

The issue of pocket listings has been a thorn in NAR’s side for a number of years now – on top of all the recent legal wranglings and settlements tied to agent commissions.

Many in the industry have long insisted that, as a matter of transparency and fairness to both buyers and agents, that all association members should list their homes for sale on local multiple listing services.

But others have countered that some sellers, such as celebrities, the wealthy or those who want to keep home sales private for whatever reasons, should have the right to market their properties as they wish.

More than four years ago, NAR tried to strike a balance between the two warring factions, issuing its current CCP rules that allow the office-exclusive sale of homes without advertising on an MLS.

But if seller agents advertised sales outside MLS sites, such as through Facebook, mass emails or local newspaper advertisements, then they had to post sales information on multiple listing services for all association members to see.

That anti-pocket-listing provision, as critics see it, has prompted loud and sustained complaints from numerous quarters – and ultimately led to legal action by the so-called Top Agent Network, a new, luxury-focused agent association launched in the wake of NAR’s very public leadership meltdown last year.

In January, NAR and lawyers for Top Agent Network announced they had reached an agreement that dismissed the latter’s lawsuit without prejudice while the association weighed the future of its Clear Cooperation Policy

Around two months later, NAR announced its new “Multiple Listing Options for Sellers” policy.

What the New Policy Does

It’s not just legal pressure, though: There’s evidence off-market listings are becoming increasingly popular outside of the luxury market.

A January Harris Poll survey commissioned by listing portal Zillow found 63 percent of respondents who had sold a home within the past five years said their agent recommended listing on a private listing network of some type. That’s compared to 18 percent for those who sold more than five years ago.

Under the new NAR policy, the old CCP provision is kept in place, but a new “delayed marketing exempt listings” option has been added.

The measure allows sellers to post sales info on an MLS site for agents’ use only – but holds off on marketing properties through the IDX and syndication for a period of time determined by the specific MLS.

In its announcements about the policy, NAR has stressed each MLS has the flexibility to decide the appropriate delay period for their local market.

The new policy also stipulates that brokers must obtain a signed certification from the seller acknowledging their understanding of the delayed marketing exemption and their waiver of some MLS benefits.

PrimeMLS ‘Still Unpacking’ the Change

The leadership of the Concord-based PrimeMLS, which serves all of New Hampshire and Vermont, as well as other parts of New England and New York, is currently reviewing the new NAR guidelines, said Chad Jacobson, chief executive of PrimeMLS.

“We’re still unpacking what it means,” said Jacobson.

But Jacobson said his initial impression is that the new rules are fair.

“It’s sort of a compromise,” he said. “It’s an ‘in-between’ option. You can still have an office exclusive and not enter [sale information] into an MLS. Or you can put it on MLS for other brokers and agents to see. But that’s it. No IDX or syndication for a while.”

The bottom line, Jacobson said, is that there’s now three options for sellers and their agents: office exclusive deals with no MLS, partial and delayed MLS listing, and full MLS listing.

“I think it’s a good policy that gives sellers another option,” said Jacobson, who emphasized he obviously believes full listing of properties on an MLS is still the most transparent and effective way to market a property.

Dave Smith, the owner-broker of Harbor Lights Realty in Sunapee, said he’s not sure how popular the new “delayed marketing” option will be with sellers.

But he said he welcomes having an additional option to offer sellers who are nervous about too much publicity surrounding a real estate sale.

“It sounds like a good idea,” he said. “It’s not going to be for everyone. But it will appeal to some people.”

Some Flexibility for Sellers

Smith emphasized there will always be a need for office-exclusive deals because that’s the way some sellers want to handle their sales.

Sometimes those sellers are celebrities who want to closely guard their privacy. Other times it’s just ordinary people who simply want to keep transactions private from neighbors, relatives or others.

“There’s nothing wrong with that,” he said of keeping sales relatively low key. “I’ve heard everything when it comes to keeping [sales] private – and they’re all sound reasons.”

Adam Dow, head of the Dow Group-Keller Williams in Wolfeboro, said the old CCP restrictions were not flexible enough for some sellers and their agents.

“There are just times when a property isn’t ready to be listed on MLS,” he said. “It could be early in the season, with lots of snow and mud on the ground, and the house isn’t ready to be seen yet.”

The new “delayed marketing” rule should loosen up the CCP listing restrictions a bit, allowing agents and brokers to at least discuss a home for sale that’s partially listed on a MLS, he said.

But Dow, as well as Smith, emphasized that it’s key for agents to make clear to sellers what they’re giving up by not having their homes immediately and fully listed on MLS.

“I tell people that putting [a sale] on MLS is still the best way to get the highest and best price,” he said.

Robert Reffkin, CEO of national brokerage Compass, has been an outspoken critic of NAR’s Clear Cooperation Policy.

While calling NAR’s new “delayed marketing” policy a “step in the right direction,” he didn’t sound enthusiastic about the latest tweak to its pocket-listing position.

“With NAR introducing a new MLS policy to ‘expand choice for consumers,’ they acknowledged the Clear Cooperation Policy restricted home seller choice,” Reffkin recently told Housing Wire. “Expanding choice means that NAR is still not letting homeowners choose precisely how to market their homes.”

But Refkin isn’t the only powerful actor in the debate. In the last two weeks, listing portal Zillow and combined listings portal-and-brokerage Redfin separately announced they would not allow listings posted on their sites that hadn’t been posted to MLS sites.