Request for Comments "Real Estate Workshop" #00048

Submission Number:
00048
Commenter:
Rob
Organization:
State:
Colorado
Initiative Name:
Request for Comments "Real Estate Workshop"
It's interesting, isn't it? The typical American has about $1k invested in his Merrill Lynch or Charles Schwab account and $200k invested in his home. Yet, the Securities & Exchange Commission will lock-up a Manhattan stockbroker for taking a 2-hour lunch while nobody seems to know or care what the MLS does. - In the real estate industry, the fox is guarding the henhouse. To illustrate, consider this excerpt from an exclusive right to sell listing agreement printed in 2016. - MULTIPLE LISTING SERVICE (MLS). MLS rules require Sponsoring Broker to input Property into the MLS within 72 hours of the execution of this Agreement. If Seller does not want the Property inputted into the MLS within 72 hours, Seller must set forth the date to have the Property inputted into the MLS by adding a date and initialing below. If Seller would like the listing to be exempt from the MLS during the entire listing period provided for in this Agreement, Seller must complete and sign the form provided by -redacted-, "Seller's Listing Exemption Addendum." Unless noted otherwise below, Sponsoring Broker will publish the MLS listing of the Property within 72 hours of the full execution of this Agreement in accordance to MLS guidelines. - In general. The clause evidences a business arrangement that operates as an exclusive dealing arrangement as its defined in the Clayton Act-a restriction that a supplier imposes on a customer, forbidding the customer from purchasing some category of products from any other supplier. The clause operates to foreclose other advertisers of real estate from selling their services. What percentage of consumers (sellers) signed and delivered the opt-out form? - Sentence 1. The typical consumer (seller) interprets "MLS rules" to mean rules established by a government agency, or at least some quasi-government agency, that oversees real estate brokerage. After all, if the Broker is regulated by the MLS, the MLS must have government powers. The consumer, at least in his mind, would do well to follow the rules. While 18 U.S. Code § 912 may or may not apply, it's the same area of law. - Last sentence. Presumably relying upon the words and phrases contained in this sentence, the MLS takes a 99-year license to use, for its own commercial interests, the consumer's property control and disposition rights guaranteed by his state constitution and 3,000 years of accepted law. Does "in accordance with MLS guidelines" evidence the consumer's understanding and intent to irrevocably and forever surrender his rights? Was there any consideration paid for this taking of rights? Of course not. Consumers that signed this particular contract may have a claim. - Throughout the Internet, you see examples of U.S. real estate professionals arguing with conviction that they own the consumer's listing data. Not true at all. In the U.S. Code, facts are not copyrightable. In 1991, the U.S. Supreme Court ruled eleven-to-one that "100 un-copyrightable facts gathered in one place do not magically change their status." Unpack this. You can't copyright phone numbers, addresses, home facts, marketing facts, pricing facts, relationship facts, and so on in any quantity in any arrangement. - Given what we know about listing contracts-specifically, the permissions they do not give- and the public statements of real estate professionals, there's a problem. Game this out… Over time, while the real estate industry tries to make U.S. property owners subject to Switzerland law, the Securities & Exchange Commission, a.k.a. the New York Yankees of the market regulation business, continues to do its job… - Real estate markets become "sketchy". Financial markets remain "trustworthy". The smart money runs to treasuries, municipal bonds and index funds. Then, one day, when you sell your house, you take a very big check to closing.