New rules target use of ‘exclusive’ real estate listings
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A for sale sign is displayed outside a home in Toronto. On Jan. 3, the new ‘cooperation policy’ formulated by CREA came into effect, forcing any realtor to add an exclusive listing to the MLS within three days of doing any public marketing.CARLOS OSORIO/Reuters

This year, Canadians will see the effective end of the so-called “exclusive” real estate listing amid a crackdown on the sales tactic by the Canadian Real Estate Association (CREA). But some realtors are asking whether it truly is the end of the exclusive, or just the opening salvo in a bigger fight over organized real estate.

“CREA is being protective for no valid reason,” said real estate lawyer and registered realtor Mark Morris with Legalclosing.ca Professional Corporation. “They are over-stepping their bounds in a significant way. … What we’re doing now is limiting what they [sellers and buyers] can do in the free market.”

At issue is a method of selling a home that has become more common in recent years. These “exclusive” listings, sometimes also called “pocket” or “off-market” listings, are properties put up for sale but not entered on the Multiple Listings Service. Local real estate boards rely on the MLS to share both broker-only information among members and to publish public data on the realtor.ca national website.

On Jan. 3, the new “cooperation policy” formulated by CREA came into effect, forcing any realtor to add an exclusive listing to the MLS within three days of doing any public marketing. Marketing would include everything from a “Coming Soon” sign on a lawn to Instagram posts about a new property.

The vast majority of residential real estate transactions in Canada involve MLS, but there are significant exceptions. Most commercial properties are not listed for sale on MLS, and large chunks of the market for trading in preconstruction contracts for condominium apartments are not found on MLS either. The recent proliferation of websites providing sold-price data, sourced from MLS, has driven more sellers and buyers to attempt to keep their transactions private through the use of exclusive listings.

“Ninety-nine per cent of the time things are happening on MLS, but [exclusives] have always been around,” said Andre Kutyan, broker with Harvey Kalles Real Estate Ltd. The type of client he often sees wanting to go exclusive is a celebrity or business leader, but in recent years he’s seen more agents claiming to do more exclusive deals, too. Verifying those claims can be difficult when there’s no record of a transaction. “There’s a lot of agents who say. ‘Most of my deals are exclusive.’ They try to create the perception they are doing a lot off the books, but there’s no way to tell.”

There are private groups on messenger services on Whatsapp and Signal with hundreds of agents looking to flog or buy an off-market home, and there are even web services that have formed a sort of alternative to the existing MLS to provide a platform for these exclusives.

In 2021, entrepreneur and former realtor Eric Skicki created his own marketplace for non-MLS real estate called BrokerPocket and says he now has 7,000 users of his service (which is not accessible to the general public). Right now, there are about 700 listings on his site, a mix of preconstruction condos and residential real estate listings.

“We’ve become the most successful non-organized real estate platform that doesn’t belong to an association,” said Mr. Skicki. He said the CREA policy, “has significant challenges and should be reconsidered,” and that he hears from his members that many are not happy with the new rule. For now, BrokerPocket will allow users to post exclusive listings if they affirm they are not a members of a board.

Adam Weiner, a salesperson with Harvey Kalles Real Estate Ltd., does a lot of “exclusive” advertising on his social media channels and says that while he’s still able to sell a home off-market the rule will cause him to market it differently.

“I think what I’ll do I’ll mention we have stuff in the pipeline, but I’m not going to be specific, because we aren’t allowed to,” he said.

It’s not clear yet how boards will enforce the new rule.

“Toronto Regional Real Estate Board (TRREB) Members adhere to CREA’s realtor code, and the new cooperation policy is a part of the realtor code,” said Paul Baron, TRREB president, in a statement. “A process is also in place to ensure TRREB member realtors adhere to the related policies, including all forms of public marketing that don’t meet the CREA exceptions.”

Mr. Morris warns that some boards may be draconian in attempting to enforce the new rule, which could further undermine support for organized real estate.

“What is actually going on here is that MLS and the boards have been terrible at addressing people’s actual needs; they’ve not provided for a system that allows for exclusive listings and not provided for a system for assignments,” he said. “Cooperation is a choice and the seller should have that choice.”

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