February 27, 2020
What does "Office Exclusive" mean with regard to the SFARMLS Clear Cooperation Policy?
The term "Office Exclusive" will still exist once Clear Cooperation goes into effect on May 1, 2020. The definition is being clarified and the original intent for its existence is being restored. Let’s explore this definition, and look at where this rule even comes from.
The term comes from rule 7.6 from the SFARMLS Rules & Regulations which governs how exempted listings are declared and managed. This rule has been in place for decades and has only been extended with a clarification that any "Public Marketing" as described by Clear Cooperation immediately invalidates the exclusivity of the listing and makes it subject to mandatory submission.
7.6 Exempted Listings.
If the seller refuses to permit the listing to be disseminated by the service, the listing broker must complete a Listing Exemption Certification by the end of the third day, after all necessary signatures of the seller(s) have been obtained on the listing. This exemption must be submitted to the SFARMLS by means of the web form available on the MLS (sfarmls.com) or in writing by way of a copy of a signed document submitted electronically. This exemption indicates that the listing is being held as an “Office Exclusive” and will not be shared outside of the Participant’s office, doing so will trigger mandatory submission following section 8. Refer to section 8.1 “Clear Cooperation” for a definition of Public Marketing that will trigger mandatory submission and invalidate the “Office Exclusive” status and subject the Participant to fines or further action.
So then, what IS an "Office Exclusive?"
An Office Exclusive listing is one which is not submitted to any other platforms outside of the office governed by a single Responsible Member. Any marketing using a 3rd party site, any email campaign that extends to agents outside those immediately governed by the same Responsible Member, any signs placed on (or near) the subject listing property, is considered public marketing under Clear Cooperation and would invalidate the declaration of Office Exclusivity. As soon as that happens, submission as either Coming Soon, or as Active, would be mandatory. There are no carve-outs here for co-listing with another non-Participant Brokerage (site) or any other types of special case exceptions.
An Office Exclusive is intended to be the listing you mention at your in-office meetings, or walk over to your colleague who has indicated she has a buyer looking for "just that thing" and you have it. There are no good faith arguments about Office Exclusives meaning that you are permitted to submit the listing to exclusive, or paid/limited access, 3rd party listing sites or marketing networks. This was never the intention of the rule. Using Office Exclusive means just that - that you intend to only market internally within your office.
How do I declare an "Office Exclusive"?
In order to declare a listing as an Office Exclusive, the listing broker has to submit a certification signed by the seller stating that the seller instructs listing broker to do no public marketing or advertising, that the only scope of permissible promotion of the property will occur internally within the brokerage and consist of direct one-on-one communication between the listing broker and licensees affiliated with the listing brokerage and their respective clients and that seller refuses to authorize the listing to be disseminated by any MLS service. Agents obtain this using the C.A.R. SELM form, which has language in it now that reflects the adoption of Clear Cooperation by C.A.R.
What activities are okay with an "Office Exclusive" and what activities are not?
This table provides examples of possible activities that will trigger mandatory submission. If you have a question about an activity, this table will give you a very clear idea of what is and isn’t possible with an Office Exclusive listing.
When a listing is found to exist on any third-party site, or to have been found marketed (in an email blast, etc...), and the listing does not appear in the MLS within one business day, a violation will be issued. We have added Fine Schedule Level “E” ($5000) for a violation of the Clear Cooperation rules. We have modeled this after other large market size or high value market MLSs such as MRED (Chicago Illinois).
#PutItOnTheMLS
Download the new 2020 spring SFARMLS Rules & Regulations here.
Download the accompanying SFARMLS Rules Change Log here.
