Let me remind those of you who have forgotten - I am not a lawyer. I don't play one on TV. I don't wish to be one. I'm happy with my little real estate semi-geek-girliness. I love the policies, the technologies and the heated arguments about the policies and technologies.
I asked the question yesterday on Twitter about an MLS wrapping IDX and VOW into one big, fat, happy rule of data display. To save myself some time I'm going to do a list of all the players who responded to this conversation and give links to their Twitter accounts:
Here's the crux of the issue at hand for the day: Should (can) an MLS allow a broker to opt out of IDX if they are opting in to VOW?
Mike Wurzer wrote a blog post on his ultra-fab FBS Blog about requiring users to register on real estate websites. Liam also posted something about VOWs to the OnBoard blog a while back. Both blogs are relevant to this post and both are, as usual, awesome. I think very highly of both Mike and Liam (Liam isn't as vocal as Mike and some of the rest of us...if you haven't had a chance to check out his stuff, you should. He's a great guy, witty and very geeky - plus he lives near me and buys me lunch). Also, Rob Haun blogged about VOWs and, of course, there is Brian Larson's kick ass VOW stuff over on his blog.
It seems one of my favorite activities recently has been arguing with Matt Lavallee and I have sworn to him that I'll win this argument. That's a mighty bold statement from me so any support I can get will be financially rewarded, errrr...appreciated.
I am absolutely clear on the fact that a VOW is an online extension of the MLS. A VOW displays all the information which would be presented to a [insert popular term here: Customer, Client, Prospect] of a broker. This includes On and Off market listings, most fields, etc. I'm clear on the fact that if a seller opts out of VOW they can not have their listings on IDX sites such as other broker sites, Realtor.com or Trulia. And I'm not even going to argue at all about the benefits of advertising listings on the innerwebs - come on fellas, we all realize it's in most seller's best interests to get their property seen by everyone!!!
To reiterate the question: Can an MLS allow a broker to withhold a listing from IDX if that listing is part of a VOW?
It seems Mike Wurzer is the only one answering the question. Mike responded on Twitter, seeing the differences in the questions at hand. Here's how I see it:
if IDX_YN = Y, VOW_YN=Y
But...the converse of that is not necessarily true:
if VOW_YN = Y, IDX_YN = Y or IDX_YN = N
(yes, that is PQL -> PrincessQueryLanguage)
In other words...a seller can be opted in to VOW but opt out of IDX. Why would they want this? Who knows. Here's one example I can give: Tiger Woods owns property on Jupiter Island. Jupiter Island is 20 minutes and an entire world away from where I live but I am familiar with very exclusive real estate. Lots of high profile sellers don't even list their properties in the MLS but some do. I imagine if Tiger were selling his Jupiter Island property he wouldn't want that information being throw all over regular websites. I think I heard something when he first bought the property about people camping out in his driveway, people taking pics of other properties close to his just to say they had been somewhere near Tiger. I digress...my point here is I can understand Tiger wanting a potential buyer to have an established relationship (the Registration issue Mike and Liam addressed) with the broker who is acting on their behalf.
Apparently the North Carolina Association of Realtors doesn't see a difference between IDX and VOW. As I understand it, they lump them as INTERNET_DISPLAY_YN and a seller can't say Y to VOW but N to IDX. I don't know where that is defined in the policy from the NAR/DOJ settlement (check Brian Larson's blog again...it's easiest to read and isn't full of as much legal stuff as the actual settlement/policy stuff).
So there are my arguments and my reasoning on why a seller should be able to opt in to VOW and out of IDX. I sincerely hope to get comments about this as I haven't seen many on this specific topic and I find it interesting. And it wouldn't suck if I could get Matt Lavallee to agree with me.
Tuesday, July 28, 2009
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An anonymous friend pointed out Section 19.6a of the NAR policy states:
ReplyDeleteSection 19.6 (a): A Participant’s VOW shall not display listings or property addresses of any seller who has affirmatively directed the listing broker to withhold the seller’s listing or property address from display on the Internet. The listing broker shall communicate to the MLS that the seller has elected not to permit display of the listing or property address on the Internet. Notwithstanding the foregoing, a Participant who operates a VOW may provide to consumers via other delivery mechanisms, such as email, fax, or otherwise, the listings of sellers who have determined not to have the listing for their property displayed on the Internet.
That still doesn't answer the question of whether or not someone can opt out of IDX when opting in to VOW
Thanks for the kind words, Kristen (easily worth another lunch!). Ok, same caveats she had on the lawyer thing (and then some), but let me give this a try (at least until Brian or Darity wanders in here). Here's my guess at the relevant section, 19.12, of the VOW policy (http://bit.ly/KhBGh).
ReplyDeleteAhem...(that's properly lawyerly, huh?):
"A Participant's VOW may exclude listings from display based only on objective criteria, including but not limited to, factors such as geagraphy, list price, type of property, cooperative compensation offered by the listing broker, and whether the listing broker is a REALTOR(R)."
I think(!) this means that listings can be excluded, but now arbitrarily. They have to use some "objective criteria". That, however, would seem to leave a lot of wiggle room--you gotta love that "but not limited to" clause the legal eagles are so fond of. I think you could use this to protect listings in your scenario, Kristen.
Is "who" (whether the seller or the VOW-user) objective criteria? I'm sure there's a legal definition (Darity, Brian, somebody?), but I'd guess yes. I would also infer that such criteria, in order to remain "objective", would have to be so in its application as well--i.e., equal and consistent. That might limit how arbitrary it can be (the point, I suppose), since you do it once, you have to do it always. That's straight up interpretation, though.
However, that said, I'm not sure there doesn't need to be some distinction made between what an MLS or broker can do according to the letter of the agreement, and what they will or should do. From the legalese I'd say they'd be within their rights to exclude all left-handed brokers--would they? I don't think so. I think they're going to have to be very, very careful with how liberally they use that clause. Remember what got them into that whole DOJ mess in the first place.
I also think more than a few MLSs are waking up to the notion that this intraweb thing is a conversation they want to be part of, to move in directions that are beneficial to them and their membership, rather than trying to kybosh it. Ultimately, draconian measures meant to protect their interests might only serve to marginalize their role, and hasten the shrinkage of their value proposition.
Tell them about shrinkage, Jerry.
Liam, first - thanks for the comments. Second - I love you dearly and I shall take you up on lunch. That said...
ReplyDeleteYou are *still* addressing VOW issues when my question is, really, an IDX issue. Can someone opt in to IDX and out of IDX? I say they can. What say you, my lunching friend?
Excellent post as usual Princess. I am a little confused by your questions notwithstanding my confusion of the VOW policy itself. Are you asking whether a broker may withhold a listing from IDX or a seller? To me, the difference is significant.
ReplyDeleteThis comes from the NAR VOW FAQ:
Q) Can sellers “opt-out” of display of their property listings on VOWs?
A) Sellers may “opt-out” of having their property listing displayed on any Internet sites or,
alternatively sellers can “opt-out” of having their property address displayed on any Internet sites. Sellers may not opt out of having their listings shown on some, but not all, VOW sites. This means that if a seller opts out of having his listing or property address displayed on VOWs, the listing (or property address) cannot be displayed on IDX sites, third-party aggregators’ sites or
elsewhere on the Internet. (revised 12.24.08)
The way I read this it tells me that the seller may opt out of both but not one or the other.
I have a call into NAR to get more clarification on this. Seems you have raised a question no one at NAR has addressed fully.
Thanks Jeff...my question still is not clear.
ReplyDeleteIf I am either a broker *or* a seller can I participate in all VOWs but opt out of IDX? I do not want my listing on Realtor.com, Zillow or any other website used for advertising but I do want my listings to show up in VOWs. BTW...I don't care about my Address...only the full listing. Address is another issue.
Ah...gotcha now. As I understand it, these two mechanisms are separate and distinct, and a broker may opt out of the IDX mechanism at the expense of his/her own ability to use IDX themselves. To use PQL, that would be the SET INTERNET_DISPLAY_YN = 'N';.
ReplyDeleteBTW, for you wouldn't that be Antsy-PQL?
So the seller can opt-out of displaying altogether, or just address. The listing broker CANNOT opt-out of the VOW, but can opt-out of IDX. Finally, the VOW participant can selectively opt-out of displaying certain listings, but only on the basis of "objective criteria"--whatever that means.
God help me, I think I need a lawyer.
Perhaps it's late but...God help me, I need a lawyer too!
ReplyDeleteThis isn't about ADDRESS - Can I opt out of IDX but be a part of a VOW, regardless of fields? I agree with "the listing broker CANNOT opt-out of the VOW, but can opt-out of IDX..."
I don't care about ADDRESS on this. Thanks, Liam. As always...you ain't dumb.
At MRIS we treat it as a cascade of rules, If you opt OUT of VOW, it's pretty much an opt out of all Internet Advertising.
ReplyDeleteFrom there, if you are VOW-Yes, you can still be IDX-No. The reverse is not true. VOW-No supercedes any choice for IDX.
We allow a broker to set for all thier listings and many local Assocs or brokers have a form they get the seller to sign either to specifically opt-in or opt-out of VOW and/or IDX. Same cascading of rules apply for both Brokers and Sellers.
It's been working so far.
Thanks Mike, paragraph 2 defines what I was seeking. You can be VOW-yes and IDX-no.
ReplyDeleteStill interested in others' reasoning.
Princess, since you called me out by name, I feel the need to respond. I was going to start off by quoting Robin Williams and say, “If you were right, I'd agree with you.” But as I reread your post, I realized this is not a right or wrong issue, and I decided instead to start with Rodney King: “Why can’t we all get along”?
ReplyDeleteI am also not an attorney but I enjoy the heated arguments (up to the point where I am hopelessly outnumbered, in which case I run and hide). Just thought I’d get that out up front.
The DOJ lawsuit came about because NAR’s proposed version of the policy allowed brokers to withhold their clients' listings from other brokers' Web sites by opting out of VOWs. The settlement reached specifically solved the problem by removing the broker opt-out option for VOWs and reducing the sellers’ options to Internet Display, yes or no.
Where I think you stray from reality is when you say, “VOWs are simply an extension of the MLS,” By the way, you might have only said this on the phone and not in your post. A VOW is an extension of MLS, true, but it’s more than that; it is an Internet marketing/advertising tool. Yes, I said marketing and I also said advertising. Do you think brokerages with VOWs aren’t going to use the fact that they have a VOW to market to consumers? of course they are. Do you think that once a consumer signs up on a VOW and commits to a brokerage that the marketing stops? Of course it doesn’t. In fact, that’s when marketing jumps into overdrive because now the seller knows you are really interested in buying a home. Call it a VOW or whatever you want, but just because you’ve established a client relationship it doesn’t mean the advertising stops.
The NAR policy simply stated: You either want your listings marketed (advertised) on the Internet or you don’t. If you understand what a VOW is and you do not want your listing on one, then you shouldn’t be allowed to have your listing on any IDX site either. If you are OK with your listing being on a VOW – which remember is still just a fancy name for client-direct advertising – then you should also be OK with your listing being on IDX sites. Consumers do not know the difference between a VOW site and an IDX site, and the vast majority of Realtors® couldn’t explain the difference. Hell, even freaking MLS employees struggle to explain.
Your Tiger Woods example is way out there. Now I know what you think about on sleepless, stormy nights in F-L-A. Here’s my take. First, I don’t think ol’ Tigey or anyone who works for Tiger or even Tiger’s Realtor® knows about, cares about, or can explain the difference between a VOW site and IDX site. Second, even if someone does get it and Tiger somehow finds the words to explain to his broker that he wants his listings on VOWs but not on IDXs, Tiger’s broker can go one of two ways:
a. Convince Tiger that there are no secrets in real estate. Reporters are going to be camped outside of his gate anyway and he might as well just throw open the floodgates and advertise the hell out of it (INTERNETDISPLAY=Y, or if you insist VOW=Y, IDX=Y). P.S. This would be a good time for Tiger to take his beautiful wife and kids to Europe.
Or …
b. Explain to Tiger that he could simply opt out of everything and let the professional Realtors® in his market handle the rest through MLS. Or even better, let the brokerage create a customized marketing Web site just for Tiger’s listing. (It’s never against the rules to market your own listing on the Internet with seller approval.) (INTERNETDISPLAY=N, or for you VOW=N, IDX=N).
In either case, agreeing with Tiger doesn’t make sense here, and someone should explain to him that VOWS-yes and IDX-no is truly pointless.
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ReplyDeleteAs we discussed, there is nowhere in the model rules where VOW-Y/N is even mentioned; it is always InternetDisplay-Y/N. Charlotte choses to interpret the policy and the model rules quite literally. A seller either opts out of Internet display of listings, or opts in; there is no middle ground.
Another thing to remember: There is really isn’t such thing as VOW=N, because the policy will always allow brokers to distrbute data to clients via other means, like email or fax. If the listing is in the MLS, every broker with a VOW site could have a big red button on it that says “Click here to have information about a certain golf pro’s mansion emailed directly to you … now!”.
The NCAR association of Realtors® took a position that fits well with ours. The standard listing agreement has one check box for “Internet Advertising” (I won’t bore you with the details). If the seller chooses not to check, an additional addendum must be completed. The additional addendum gives the seller two options:
1. Owner authorizes listing firm to display information in the Internet, but not anyone else (an acknowledgement is included that says the property will not be eligible for inclusion in any listing service). (INTERNETDISPLAY=DOESNTMATTER, because it’s not in the MLS).
2. Owner does not authorize display of information on the Internet, but MLS Ok. (INTERNETDISPLAY=N).
I agree with you that the settlement and the model rules and the frequently asked questions are all one-sided in their perspective, mentioning numerous times what should happen if a seller opts out of VOWs, and never once mentioning what should happen if a seller approves of VOWs but doesn’t want everything else.
Normally I might insert a comment or two here about how NAR never really considers what MLSs want or need to run their businesses, but this time I won’t. NAR and DOJ attorneys in their infinite wisdom … no scratch that, definitely overkill. NAR and DOJ attorneys intentionally, unintentionally, accidentally or luckily didn’t cover your scenario in the settlement, the model rules or the frequently asked questions, and I believe they made the right call.
At CMLS, we bundled everything together. As southern radio personality, John Boy says “Ya’in? Ya’out? Ya’in? Ya’out?”, and it works for us (so far). I know of several other MLSs that did it the same way. According to Mike DelGaudio’s post above, MRIS did it a little different, and I know of several other MLSs that did something similar.
My guess is that you are going to find a lot of good, smart, well-informed and well-intentioned people at MLSs across the country that have adopted a wide range of system policies based on the same set of mandatory rules, and there isn’t one thing wrong with that. There are plenty of examples of these common differences; square foot ranges and value price ranges come to mind. What works in one market, may not work in another, and vice versa.
Bottom line, I don’t think NAR needs to change anything.
Steve
p.s. I think you rock.
ReplyDeleteI agree with your 3rd response wholeheartedly. I need to consider your other points before I hit my hole-in-one and win this argument.
ReplyDeletep.s., I think you rock, too.