You may recall a few months back we talked about the Competition Bureau declaring that the CREA’s has some rules that are anti-competitive concerning their MLS system. At that point the CREA did a lot of posturing and pumped out some bravado, but said they’d seek something of a settlement with the Competition Bureau.
Since that time evidently they’ve been in negotiations, to some extent anyway… but earlier this week the Competition Bureau dropped the hammer on them again and announced that there would be no settlement reached, and thus, they’re taking the CREA to tribunal. Where both sides will argue their side, and then the tribunal make there decision and the results will be binding.
In the wake of this, the CREA does what every company with a PR department does… that being twist some arms in the media, feign indignance and posture. They also issued another internal memo to their members laying out the changes they were willing to offer the Competition Bureau. That can be read via this link.
I’ll spare you reading through that moaning, and just show you the amendments. The italics represent new language, and crossed out represents the old language. So lets take a look.
RULE 17: OPERATION OF A BOARD’S MLS® SYSTEM
17.1: Acceptance of Listings
17.1.1: The Three (3) Pillars of the MLS® Mark
Only listings that comply with the following three (3) pillars of the MLS® Mark can be placed on a Board/Association’s MLS® System.
17.1.1.1: Membership
Only REALTORS® may place a listing on a Board/ Association’s MLS® System.
17.1.1.2: Agency
A listing REALTOR® must act as agent for the seller to sell the property and to assist the seller throughout the entire time of the listing contract in order to post, amend or remove a property listing in a Board’s MLS® System. The nature of any additional services to be provided by the listing REALTOR® is determined by agreement between the listing REALTOR® and the seller, subject to applicable regulatory requirements and the Rules of CREA and Boards/Associations.
17.1.1.3: Compensation to Co-operating Broker
The listing REALTOR® agrees to pay to the co-operating (i.e. selling) REALTOR® compensation for the co-operative selling of the property. An offer of compensation of zero is not acceptable.
17.2: Interpretations of the Three Pillars of the MLS® Mark
17.2.1: The listing REALTOR® shall receive and present all offers and counter offers to the seller.
17.2.21: The listing REALTOR® shall be available to provide professional advice and counsel to the seller on all offers and counter offers unless otherwise directed by the seller in writing.
17.2.3: The mere posting of property information in an MLS® system is contrary to CREA’s Rules. A “mere posting” occurs when the listing agreement relieves the listing member of any obligations under the Rules, including the obligation that the listing REALTOR® remain the agent of the seller throughout the term of the listing contract.
17.2.42: The listing REALTOR® is responsible and accountable for the accuracy of information submitted to a Board/Association for inclusion in the Board’s MLS® system, and the Board/Association is responsible for ensuring that the data submitted to it meets reasonable standards of quality.
17.2.53: Only REALTORS® are permitted to display the MLS® trademarks in signage, advertising, etc.
17.2.64: Only the listing REALTOR® name(s) and contact information may appear on REALTOR.ca. Where the seller directs the listing REALTOR® in writing to do so, the seller’s contact information may appear in the REALTOR® only remarks (non-public) section of a listing on a Board/Association’s MLS® System. The seller’s name or contact information shall not appear on REALTOR.ca or in the general (public) remarks section of a listing on a Board/Association’s the MLS® System. The listing REALTOR® may include a direction in the General Description section on REALTOR.ca or on websites operated by CREA or a Board/Association to visit the REALTOR® website to obtain additional information about the
listing (but the nature of such additional information shall not be specified).
17.2.75: In cases w Where a Board permits listings in which the seller has reserved the right to sell the property himself/herself, that fact shall be specified in the Board/Association’s MLS® database System.
The change in 17.1.1.2 basically makes it so a seller could just employ an agent to list their property on the MLS, and could pick and choose whatever other services they wanted (open houses, representation in negotiations, none of the above, etc)… whereas before the rules stated a seller must take ALL the services, whether they want them or not. Which would seem to largely satisfy what the Competition Bureau was requesting. So, so far, so good.
So we work our way down to section 17.2… and the first thing we notice is they strike a couple rules. First, the section stating the agent must receive and present all offers is struck. This would go hand-in-hand with the first amendment giving the seller options as to what services are offered, as well as lending them the ability to accept offers directly. Again, good. The former 17.2.3 suffers the same fate, as to allow sellers that ability to acquire ala carte services, in this case merely getting listed on MLS and nothing further.
Then we get down to the last two, and things start going off the rails, and is quite likely where the Competition Bureau took issue. In 17.2.64 it formerly stated that none of the sellers personal information may appear in the listing… this was changed to say that if the seller puts it in writing that they want their contact info included on the listing that it may, but would only be available on the listing agents own website. But nowhere else.
So if someone was looking on realtor.ca, the sellers information would not be available. At most there could be a vague allusion to there being further information available on the listing agents website, but not what information. This one strikes me as quite a chintzy amendment, and designed to make it sound like they’re cooperating, when they’re really doing nothing.
The final one, 17.2.75 actually seems like a decent concession. Whereas before before their could feign ignorance and say it was up to the various boards to set the rules regarding whether the seller can represent themselves, here it states that the seller can do so anywhere. So, that’s good.
As far as their “pillars” go, other than the one I think their amendments are fair… but I think an even bigger issue isn’t really broached in that discussion, and that is access to the MLS database itself. They had a battle similar to this in the US back in ’05/’06… the Justice Department went after the NAR and won. Since then innovation has really taken hold and even with their real estate market collapsing after the bubble of their own, innovation has still revolutionized the offerings (eg. Zillow) to the consumer. In just four years, they’re now lightyears ahead of we Canadians.
That’s not to say this is a cut and dry case though. After all, this is their database. They’ve spend a lot of time and money developing and maintaining it, and within that should have the right to govern it’s use as they please. The problem though, is that in this case they could ultimately fall victim to their own success, or more specifically, that of the multiple listing service. As 90% of all transactions go through it, they have established themselves as a de facto monopoly… and when that happens, the rules change. Particularly when such a large population is effected, and such large sums of money are involved.
Arguments along those lines would be interesting to hear… on the other hand, many of the arguments trotted out by agents publicly though seem to vary from the laughable to the completely absurd. One of the most common talking points seems to surround skill and professionalism… which is really quite ridiculous.
This is an issue of database access, and to get access to that database the requirements have nothing to do with the aforementioned qualities. Taking a couple classes, passing a test and writing a cheque does not a professional make (in fact, from what I’ve read it’s little different than what it takes to sell insurance door-to-door, which BTW, are pretty much pyramid schemes if you ever wondered).
That’s not to say there aren’t ones that are great at what they do… just that the entry requirements does nothing to separate the competent from those that can’t find their ass with both hands and a compass. As opposed to say actual professions, like doctors, lawyers or even CA’s where the barriers to entry are vastly greater, and professional associations actually act like professional associations and not glorified lobby groups.
Anyway, enough of that for today. We’ll touch on this again when there are new developments… but for the next couple weeks I’ll have my ass firmly entrenched on the couch watching the Games. I’m an admitted Olympic junkie. I’ve got PVR’s hooked into DVD recorders hooked into old school VCR’s, determined to not to miss a second of it… even sprung to send the girlfriend on a cruise to make sure she wouldn’t be around to hassle me. I’m going to try to keep up with the updates, but if they’re slow coming don’t worry, I’m not dead, just binging on junk food and biathlon!
