7. LISTING PROCEDURE

7.1 Listings Subject to Rules and Regulations of the Service

Any listing filed with the service is subject to the rules and regulations of the service.

7.2 Types of Listings: Responsibility for Classification

The service shall accept exclusive right to sell, exclusive agency, open and probate listings as defined in California Civil Code § 1086 et. seq. that satisfy the requirements of these MLS rules. Exclusive right to sell listings that contain any exceptions whereby the owner need not pay a commission if the property is sold to particular individuals shall be classified for purposes of these rules as an exclusive right to sell listing, but the Listing Broker shall notify all Participants of the exceptions. By so classifying a listing, the Listing Broker certifies that the listing falls under the legal classification designated. It shall be the responsibility of the Broker Participant and real estate Subscriber to properly classify the type of listing submitted and, if necessary, to obtain a legal opinion to determine the correct classifications; the MLS shall not have an affirmative responsibility to verify such legal classifications. The MLS shall have no affirmative responsibility to verify the listing type of any listing filed with the service. However, the MLS shall have the right to have legal counsel make a determination as to the classification of the listing type and if the Listing Broker does not reclassify it accordingly, EBRDI shall have the right to reject or remove any such listing that it determines falsely represents the classification of a listing.

For violation of this section, see Appendix A, Citable Infractions, 3.1., Reporting and Accuracy of Information.

7.2.1 Scope of Service; Limited Services Listings

Limited Service Listings are listings whereby the Listing Broker, pursuant to the listing agreement, will not provide one, or more, of the following services:

  1. provide cooperating brokers with any additional information regarding the property not already displayed in the MLS but instead gives cooperating brokers authority to contact the seller(s) directly for further information;
  2. accept and present to the seller(s) offers to purchase procured by cooperating brokers but instead gives cooperating brokers authority to present offers to purchase directly to the seller(s);
  3. advise the seller(s) as to the merits of offers to purchase;
  4. assist the seller(s) in developing communicating, or presenting counter-offers; or
  5. participate on the seller(s) behalf in negotiations leading to the sale of the listed property.

Said Limited Service Listings will be identified with an appropriate code or symbol (e.g. “LS”) in MLS compilations so potential cooperating brokers will be aware of the extent of the services the Listing Broker will provide to the seller(s), and any potential for cooperating brokers being asked to provide some or all of these services to Listing Broker’s clients, prior to initiating efforts to show or sell the property.

7.2.2 Scope of Service; MLS Entry-Only Listings

MLS Entry-Only Listings are listings whereby the Listing Broker, pursuant to the listing agreement, will not provide any of the following services:

  1. provide cooperating brokers with any additional information regarding the property not already displayed in the MLS but instead gives cooperating brokers authority to contact the seller(s) directly for further information;
  2. accept and present to the seller(s) offers to purchase procured by cooperating brokers but instead gives cooperating brokers authority to present offers to purchase directly to the seller(s);
  3. advise the seller(s) as to the merits of officers to purchase;
  4. assist the seller(s) in developing communicating, or presenting counter-offers; or
  5. participates on the seller(s) behalf in negotiations leading to the sale of the listed property.

Said MLS Entry-Only listings will be identified with an appropriate code or symbol (e.g. “EO”) in MLS compilations so potential cooperating brokers will be aware of the extent of the services the Listing Broker will provide to the seller(s), and any potential for cooperating brokers being asked to provide some or all of these services to Listing Broker’s clients, prior to initiating efforts to show or sell the property.

7.3 Types of Properties

The MLS shall accept listings that satisfy the requirements of these rules on the following types of property (see definitions in Appendix B):

  • Residential Class – detached, duet, patio home/villa, condominium, townhouse
  • Residential Income Class
  • Mobile Home Class
  • Lots & Land Class
  • Lease Rental Class
  • Commercial Residential Income Multi-Unit 5+ Class
  • Commercial Business Opportunity
  • Commercial Industrial for Sale
  • Commercial Industrial for Lease
  • Commercial Lots and Land

See Appendix B for definitions of the above property types.

It shall be the responsibility of the Broker Participant and real estate Subscriber to properly classify the class of property listed, and if necessary, obtain a legal opinion to determine the correct classification. By specifying the class of property listed, the Listing Broker certifies that the listing falls under the classification designated. The MLS shall have no affirmative responsibility to verify the property class of any listing filed with the service. However, the MLS shall have the right to have legal counsel make a determination as to the classification of the property class and if the Listing Broker does not reclassify it accordingly, the AOR/Regional MLS shall have the right to reject or remove any such listing that it determines falsely represents the property class of the listing. Submission of duplicate listings by the same Participant within the same property class is prohibited.

For violation of this section, see Appendix A, Citable Infractions, 3.1.7, Submission of a Duplicate Listing within the Same Property Class.

7.4 Compliance with California and Federal Law

Notwithstanding any other provision of these MLS rules and regulations to the contrary, the service shall accept any listing that is required to accept under California or federal law.

7.4.1 Time Frame Definitions

Unless otherwise expressly indicated, where compliance time frames set forth days, “days” mean calendar days; “days after” means the specified number of calendar days after the occurrence of the event specified, not counting the calendar date on which the specified event occurs, and ending at 11:59 p.m. on the final day; and “days prior” means the specified number of calendar days before the occurrence of the event specified, not counting the calendar date on which the specified event is scheduled to occur.

7.5 Mandatory Submission

Within 3 days after all necessary signatures of the seller(s) have been obtained on the listing or at the beginning date of the listing as specified in the contract, whichever is later, on any exclusive right to sell or exclusive agency listing on one to four-unit residential property and vacant lots located within the service area of the MLS, Broker Participants shall

  1. Input the listing to the service, or
  2. Submit a seller-signed exclusion in accordance with Section 7.6 (Exempted Listings) to the service.

All necessary signatures are those needed to create an enforceable listing, which generally means all named signatories to the listing agreement. In the event there are known additional property owners not made a signatory to the listing, listing broker shall disclose said fact on the service and state whether the listed seller will make the sale contingent on the consent of the additional property owners. In the event listing agent is prevented from complying with the 3-daytime period due to seller’s delay in returning the signed listing agreement, listing broker must submit the listing to the service within 3 days of receipt back from seller. The MLS may require listing broker to present documentation to the service evidencing seller’s delayed transmission. Only those listings that are within the service area of the MLS must be input. Open listings or listings of property located outside the MLS’s service area (see Section 7.7) are not required by the service, but may be input at the Broker Participant’s option.

For violation of this section, see Appendix A, Citable Infractions, 2.1, Listing Not Loaded Within 3 days of Start Date of Listing.

7.6 Exempted Listings

If the seller refuses to permit the listing to be disseminated by the service, the listing broker shall submit to the service a certification signed by the seller that the seller does not authorize the listing to be disseminated by the service. C.A.R. Standard Form SELM may be used for this certification, but in any event, said exclusion shall include an advisory to seller that, in keeping the listing off the MLS

  1. Real estate agents and brokers from other real estate offices, and their buyer clients, who have access to the MLS may not be aware seller’s property is for sale,
  2. Seller’s property will not be included in the MLS’s download to various real estate Internet sites that are used by the public to search for property listings, and
  3. Real estate agents, brokers and members of the public may be unaware of the terms and conditions under which seller is marketing the property
  4. The reduction in exposure of the listing may lower the number of offers made and negatively impact the sales price

Note

NOTE FOR THE FUTURE: Parallel language along the line of that set forth below will be added as an additional disclosure requirement under the Exempted Listing Rule once it and/or any other similar or related change is made to the SEL and goes into effect in the C.A.R. Standard Forms (the process of which is currently underway): and (4) the reduction in exposure of the listing may lower the number of offers made on the property and may adversely impact the overall price.

For violation of this section, see Appendix A, Citable Infractions, 2.2, Listing Waiver Not Submitted to MLS within 3 days of Start Date of Listing.

7.7 Service Area

The MLS shall service Alameda and Contra Costa Counties. If EBRDI enters into regional MLS agreements or a regional MLS corporation with other MLSs and has enlarged the service area as part of the agreement or corporation, submission of the type of listings specified in section 7.5 is mandatory for the area covered by the combined service areas of the Associations signatory to the regional MLS agreement or part of the regional MLS corporation.

7.8 Change of Listing Information

Listing Brokers shall input any change in listing information, including the listed price or other change in the original listing agreement, to the MLS within 1 day after the authorized change is received by the Listing Broker. By inputting such changes to the MLS, the Listing Broker represents that the listing contract has been modified in writing to reflect such change or that the Listing Broker has obtained other legally sufficient written authorization to make such change.

For violation of this section, see Appendix A, Citable Infractions, 2.3, Status Changes Not Reported by Deadline.

7.9 Withdrawal of Listing Prior to Expiration

The Listing Broker must withdraw listings of property from the MLS before the expiration date of the listing agreement provided the Listing Broker has received written instructions from the seller to withdraw the listing from the MLS. Listing broker may withdraw any listing from the MLS 48 hours after providing seller with written notice of the broker’s intention to withdraw the listing based on a dispute with the seller regarding the terms of the listing agreement. The MLS may require the listing broker to provide a copy of any notice of dispute or any written instructions from the seller. Sellers do not have the unilateral right to require the MLS to cancel any listing. However, the MLS reserves the right to remove a listing from the MLS database if the seller can document that his or her listing agreement with the Listing Broker has been terminated or is invalid. Withdrawal from the MLS with the seller’s consent does not relieve the obligation of the listing broker to report the sale and sales price if it closes escrow while the seller is represented by the listing broker.

For violation of this section, see Appendix A, Citable Infractions, Section 3, Submission of Listings that Do Not Satisfy the Requirements of the MLS Rules.

7.10 Contingencies

Any contingency or condition of any term in a listing shall be specified and noticed to the Participants and Subscribers.

7.11 Details on Listings Filed With the Service

Electronically input data or a property profile sheet, when filed with the service by the Listing Broker, all listings input into the MLS shall be complete in every detail as specified on the property profile sheet including full gross listing price, listing expiration date, compensation offered to other Broker Participants and any other item required to be included as determined by the EBRDI Board of Directors. Listings that are incomplete shall be ineligible for publication in the MLS and subject to immediate removal.

For violation of this section, see Appendix A, Citable Infractions, 3.1, Submission of Listings that DoNot Satisfy the Requirements of the MLS Rules.

7.11.1 List Date Definition

For MLS Data tracking purposes the “List Date” field in the MLS shall be defined as the date of input into the MLS system.

7.12 Unilateral Contractual Offer; Sub-agency Optional

In filing a property with the MLS, the Broker Participant makes a blanket unilateral contractual offer of compensation to the other MLS Broker Participants for their services in selling the property. Except as set forth in Rule 7.15 below or pursuant to California Civil Code Section 1087, a Broker Participant must specify some compensation to be paid to either a buyer’s agent or a sub-agent and the offer of compensation must be stated in one, or a combination of, the following forms (1) a percentage of the gross selling price; or (2) a definite dollar amount. The amount of compensation offered through the MLS may not contain any provision that varies the amount of compensation offered based on conditions precedent or subsequent or on any performance, activity or event. Furthermore, the MLS reserves the right to remove a listing from the MLS database that does not conform to the requirements of this section. At the Broker Participant’s option, a Broker Participant may limit his or her offer of compensation to buyer’s agents only, to sub-agents only, or make the offer of compensation to both. Any limitations on the contractual offer of compensation must be specified on the property profile sheet. The amount of compensation offered to buyers’ agents, sub-agents may be the same, or different but must be clearly specified on the property profile sheet. Broker Participants wishing to offer sub-agency to the other MLS Broker Participants must so specify on the property profile sheet and on the MLS, otherwise, the offer of compensation does not constitute an offer of sub agency.

7.13 Acceptance of Contractual Offer

The Broker Participant’s contractual offer (with or without sub-agency) is accepted by the Participant/selling broker by procuring a buyer which ultimately results in the creation of a sales or lease contract. Payment of compensation by the Participant/Listing Broker to the Participant/cooperating broker under this section is contingent upon either (1) the final closing or (2) the Participant/Listing Broker’s receipt of monies resulting from the seller or buyer’s default of the underlying sales or lease contract. Notwithstanding this section, the Listing Broker and/or cooperating broker shall retain any remedies they may have against either the buyer or seller due to a default under the terms of the purchase agreement, listing agreement or other specific contract. Any dispute between Participants arising out of this section shall be arbitrated under section 16 of these rules and shall not be considered a rules violation.

7.15 Estate Sale, Probate and Bankruptcy Listings

Compensation offered through the MLS to cooperating brokers on estate sale, probate or bankruptcy listings is for the amount published therein as long as the cooperating broker produces the contract which is ultimately successful and confirmed by the court, if court confirmation is required. In the event the contract produced by the cooperating broker is overbid in court and the overbid contract is confirmed, the original cooperating broker shall receive the amount of compensation specified as “unconfirmed cooperating broker’s compensation” or “u.c.b.” in the property data profile sheet and on the MLS. For estate sale or probate listings, the compensation offered through the service under these rules and this section shall be considered an agreement as referred to in California Probate Code Section 10165 and will therefore supersede any commission splits provided by statute when there is not agreement. This section contemplates that estate sale; probate and bankruptcy judges have broad discretion and therefore are not intended as a guarantee of a specific result as to commissions in every probate or bankruptcy sale.

7.16 Changes to Offer of Compensation by Listing Broker to All Broker Participants

The Listing Broker may from time to time, adjust the published compensation offered to all MLS Broker Participants for their services with respect to any listing by changing the compensation offered on the MLS or providing written notice to the MLS of the change. Any changes in compensation will be effective after the change is published in the MLS, either through electronic transmission or printed form, whichever occurs first. The Listing Broker may revoke or modify the offer of compensation in advance as to an individual Broker Participant prior to acceptance in accordance with general contract principles but in no event shall the Listing Broker revoke or modify the offer later than the time the cooperating broker (a) physically delivers or transmits by fax or e-mail to the listing broker a signed offer from a prospective buyer to purchase the property for which the compensation has been offered through the MLS, or (b) notifies the Listing Broker in person or by telephone, fax or e-mail that the cooperating broker is in possession of a signed offer from a prospective buyer to purchase the property for which the compensation has been offered through the MLS and is awaiting instructions from the Listing Broker as to the manner of presentation or delivery of that offer. Any such independent advance revocations, modifications of the offer or agreements between real estate brokers are solely the responsibility of such brokers and shall not be submitted to, shall not be published by, or governed in any way by the service.

7.17 Broker Participant or Real Estate Subscriber as Principal

If a Listing Broker has any interest in property, the listing of which is to be disseminated through the service, that person shall disclose that interest on the MLS.

7.18 Multiple Unit Properties

All properties which are to be sold or which may be sold separately must be indicated individually on the MLS and will be published separately. When part of a listed property has been sold, the Listing Broker shall input the appropriate changes on the MLS.

7.19 Expiration, Extension, and Renewal of Listings

Listings shall be removed from the MLS database on the expiration date specified on the listing unless the listing is extended or renewed by the Listing Broker. This Listing Broker shall obtain written authorization from the seller(s) before filing any extension or renewal of a listing. Any renewals or extensions received after the expiration date of the original listing shall be treated as a new listing and will be subject to any fees applicable to new listings. At any time and for any reason, the MLS has the right to request a copy of the seller’s written authorization to extend or renew a listing. If a Listing Broker is requested to provide a copy of such authorization and does not do so within 1 day after the request, the listing shall be subject to immediate removal from the MLS.

For violation of this section, see Appendix A, Citable Infractions, 3.4, Purposely Manipulating the MLS System to Circumvent the Rules.

7.20 Listings of Participants or Subscribers Suspended, Expelled or Resigned

7.20.1 Failure to Pay MLS Fees; Resignation

When a Participant or Subscriber is suspended or expelled from the service for failure to pay MLS fees or charges, or if the Participant or Subscriber resigns from the service, the MLS shall cease to provide services to such Participant or Subscriber, including for Broker Participants the continued inclusion of listings in the MLS compilation of current listing information. In the event listings are removed from the MLS pursuant to this section, it shall be the sole responsibility of the Participant to notify the seller(s) that the property is no longer listed in the MLS.

7.20.2 Violation of MLS Rules

When a Participant or Subscriber is suspended or expelled from the service for a violation of the MLS rules and regulations, the MLS shall cease to provide services to such participant or subscriber except that the listings in the MLS at the time of suspension or expulsion shall, at the suspended or expelled Participant’s option, be retained in the MLS compilation of current listing information until sold, withdrawn or expired, and shall not be renewed or extended by the MLS beyond the termination date of the listing agreement in effect when the expulsion became effective. In the event listings are removed from the MLS pursuant to this section, it shall be the responsibility of the Participant to notify the seller(s) that the property is no longer in the MLS. If a suspended or expelled Participant opts to keep listings in the MLS until sold, withdrawn or expired under this Section 7.20.2, the Participant must comply with all applicable MLS rules and regulations during such time or the MLS may immediately remove the listings from further display.

7.21 No Control of Commission Rates or Fees Charged by Participants

The MLS shall not fix, control, recommend, suggest, or maintain commission rates or fees for services to be rendered by Participants. Further, the MLS shall not fix, control, recommend, suggest, or maintain the division of commissions or fees between cooperating Participants or between Participants and non-Participants.

7.22 Dual or Variable Rate Commission Arrangements

The Listing Broker shall disclose the existence of a dual or variable commission arrangement by a key, code or symbol as required by the MLS. A dual or variable rate commission arrangement is one in which the seller agrees or owner agrees to pay a specified commission if the property is sold by the Listing Broker without assistance and a different commission if the sale results through the efforts of a cooperating broker, or one in which the seller agrees to pay a specified commission if the property is sold by the Listing Broker either with or without the assistance of a cooperating broker and a different commission if the sale results through the efforts of a seller or owner. The Listing Broker shall, in response to inquiries from potential cooperating brokers, disclose the differential that would result in either a cooperative transaction or, alternatively, in a sale that results through the efforts of the seller or owner. If the cooperating broker is representing a buyer or tenant, the cooperating broker must then disclose such information to his or her client before the client makes an offer to purchase or lease.

7.23 Right of Listing Broker and Presentation of Counter Offers

The Listing Broker has the right to participate in the presentation of any counter-offer made by the seller or lessor. The Listing Broker does not have the right to be present at any discussion or evaluation of a counter-offer by the purchaser or lessee (except where the cooperating broker is a sub-agent). However, if the purchaser or lesseegives written instructions to the cooperating broker that the Listing Broker not be present when a counter-offer is presented, the Listing Broker has the right to a copy of the purchaser’s or lessee’s written instructions.

7.24 Auction Listings

Only auction listings which comply with these MLS Rules and Regulations, including, but not limited to Section 7.12 and 7.13, may be submitted to the Service. Auction listings entered into the MLS system shall have listing contracts as required under these rules, be clearly labeled as auction listing, and provide all the terms and conditions of the auction. Reserve auctions are not permitted on the MLS.

Auction listings shall further specify the following:

  1. The list price, which shall be seller’s minimum acceptable bid price;
  2. The date, time and place of the auction;
  3. All required procedures for Participants/Subscribers to register their representation of a potential bidder;
  4. The amount of the buyer’s premium, if any;
  5. The time or manner in which potential bidders may inspect the listed property;
  6. Whether or not the seller will accept a purchase offer prior to the scheduled auction; and
  7. Any other material rules or procedures for the auction. Subsections (b) through (g) above shall not appear in a listing’s public remarks.

For violation of this section, see Appendix A, Citable Infractions, 3.4, Purposely Manipulating the MLS System to Circumvent the Rules.

7.25 Co-Listings

Only the listings of Participants and Subscribers will be accepted by the MLS. Inclusion of co-listings where the co-listing broker/agent is not a Participant or Subscriber in the MLS is prohibited.

7.26 Churning of Listings/ReListings

Manipulation of listing data, which misleads the public, participants and subscribers, is not permitted. Only when the listing Participant/Subscriber has signed a new listing agreement with the seller, shall the Participant/Subscriber be permitted to relist the property in the MLS as a “new” listing. Only when a property has been off the market for more than thirty (30) days will the days (CDOM and CDMLS) on the listing start at zero (0). This applies regardless of withdrawals, cancellations, extensions, expiration and /or other modifications to listing agreement.

7.27 REO & HUD Listings

REO and HUD listings entered into the MLS system shall have listing contracts as required under these rules and be clearly labeled as REO or HUD listings. See Section 7.11 for more information.

7.28 Short Sale (Lender Approval) Listings

Participants must disclose potential short sales (defined as a transaction where title transfers, where the sale price is insufficient to pay the total of all liens and costs of sale and where the seller does not bring sufficient liquid assets to the closing to cure all deficiencies) when reasonably known to the listing broker. This section does not allow Participants with short sale listings to place any reduction conditions on compensation offered through the MLS for items such as lender reductions of the gross commission, short sale negotiator fees or other administrative costs of the transaction. Any reductions from the commission for such items, if any, should be factored in as a reduced amount the listing broker initially offers to a cooperating broker and may not be made a condition of the offer.

7.29 Assume Identity

Participants and Subscribers within the same firm/office may allow another subscriber access to their listings by allowing subscriber to assume their identity. The access is solely for clerical and administrative functions. The participant or subscriber shall be responsible for the conduct of the Assume Identity User, and shall be linked in the system. Participant and Subscriber shall immediately notify the MLS of any changes, additions or deletions of users. Assume Identity Users shall also be subject to the following requirements:

  • Must have any fees or fines paid current;
  • Participant or Subscriber linked to the Assume Identity User may be fined, disciplined or terminated for Assume Identity User’s misconduct.