Next Thursday, there will be a pop up notification in FlexMLS when you sign in that you acknowledge the new rules that govern our MLS service and agree to abide by the terms and conditions, as an obligation of continued membership in the MLS. You will not be allowed into the system until you click the I Agree button. If the you click I Disagree, another message will be displayed, explaining that the user must agree to the broadcast message in order to use Flexmls.  

Here is a link to the revised governing documents that were approved and ratified by the appropriate authority to comply with the national mandates of the settlement:

• Marked up changes: Governing Documents
• Current versions on our Website

We wanted you to be prepared to click I AGREE to avoid any access issues.  If you do not agree, please address it with the Board Office PRIOR TO NEXT THURSDAY, so we can work through any objections, if any. Please remember these are national mandates we must follow.  In layman’s terms, there are:

10 Marketplace Changes MUST Occur by August 17th:

1. No offers of compensation in MLS.

MLSs must eliminate any requirements that brokers or sellers make offers of compensation through the MLS and prohibit the same. The MLS will eliminate all broker compensation fields and prohibit sharing offers via any other fields in the MLS system on August 8^th, 2024. We have updated our rules to include this restriction.

Note: Off MLS offers permitted. The above changes do not prevent offers of compensation made from listing brokers to buyer brokers outside of the MLS.
Lots more on that later in this document.

2. No off-MLS facilitated offers.
   MLSs can’t do an end run around these rules or help you violate them either. We can still provide data feeds to participants and third parties, so long as all agree not to use feeds to establish a platform for offers of compensation from multiple brokers. Brokers may still display their own offers, if any, on their own website.

Note: New Data Feed Agreements:  If you have a website that uses our MLS data, we will be submitting a new or amended data licensing agreement that complies with the terms of the settlement.  You can either agree that you won’t use the data as restricted by the terms of the settlement, or you can terminate the feed.  Expect that within the next month.

3. Mandated Buyer broker agreements.
   MLSs must require all participants working with a buyer to have a written agreement before touring a listing. That agreement must describe the broker’s compensation, the amount must be objectively ascertainable and not open-ended, and the broker may not receive compensation from any source that exceeds the amount in the agreement.

Note: This is not for listing brokers. This is for agents working for buyers. The premise is this – if you’re working with a buyer and expect to get paid for that work, you need to lay out the terms and services that you will provide, the duration of that commitment and agreement to a fixed compensation rate for your services.

Note: Contract Triggers: Simply marketing your services or speaking to a buyer about creating a relationship does not trigger the need for an agreement.  But, as soon as you begin to work with a buyer and provide any brokerage services, as outlined in the FAQs, that triggers the need for an agreement.  There is a whole section of the NAR FAQs on this topic. The “working with” language is intended for those providing brokerage services to a buyer—such as:

• • identifying potential properties
  • arranging for the buyer to tour a property
  • performing or facilitating negotiations on behalf of the buyer
  • presenting offers by the buyer
  • counseling on financing and the homebuying process
  • or other services you provide for the buyer

Note For listing agents, speaking with a buyer at an open house or showing an unrepresented buyer a house that you have listed is NOT considered working with the buyer. You are working only as an agent of the seller with an unrepresented buyer customer.  You complete the agency disclosure form to indicate you are a seller’s agent, explain the buyer’s right to representation but do not have to provide a contract since your client service promises and payments of compensation are covered in the Exclusive Right to Sell agreement with your client, the seller.

Note: Dual agents DO work with both the buyer (and the seller) and a contract would be required.

4. No advertising services as free.
   MLSs must prohibit participants and subscribers from representing their services are free.

Note: Your services aren’t free, they always financially impact the transaction. That’s why our REALTOR Code of Ethics changed a while ago to reflect this as well. No news here, you are worth every penny, don’t diminish that.

5. Participant disclosure regarding offers.
   MLSs must require participants to disclose to sellers and obtain seller approval for any payment or offer, if any, the listing broker or seller makes to another broker, agent, or representative (e.g., attorney) working with a buyer.

Note: Sure thing. You’ve always done this, and now the Exclusive Right to Sell makes it crystal clear how the seller directs their agent to make offers of compensation, if any, with clear disclosures that even broker-to-broker compensation is negotiable and determined by the seller. Other agreements can be taken up in the Purchase and Sale but of course all alternatives should be discussed during the listing stage, so the seller knows what to expect and how to properly price and market from the beginning.

6. Participant disclosure regarding commissions.
   MLSs must require participants to disclose to sellers and buyers that commissions are not set by law and are fully negotiable in listing, buyer broker and in pre-closing agreements and documents, if any (unless it’s a government specified form).

Note: All of our agreements now have this displayed as a big, red statement. We thought the blank lines for compensation were a give-a-way that it was always negotiable but now there can be no question.

7. No filtering.
   MLSs must prohibit participants and subscribers from filtering out listings based on the existence or level of compensation offered to the broker assisting the buyer.

Note: All Listings, Despite Conversations: The settlement says the MLS must stop agents from filtering listings, so we will add this to the list of things we will monitor and enforce. You should ALWAYS expose your buyers to all the listings on the market that match their criteria.  ALWAYS.  How the offer plays out down the road is one of many financial considerations in offer negotiations.  No one can tell in advance what negotiations will secure a winning deal. You are your buyer’s professional representative – you’ll tell them everything you know about the listing, make sure they are fully informed about any research and market knowledge you can share, and help them develop strategies that align with their financial interests and desires.

8. Educational materials.
   MLSs must provide settlement educational materials. (How could we not?!?!) Video, Virtual, Paper and Online, we are doing it all. We will discuss the topics featured here and take questions at the scheduled education zoom sessions this month, and add more if needed.   Plus, there is this giant compendium on all things related to Berkshire settlement compliance!

9. Concessions in MLS permitted.
   Sellers may offer buyer concessions on the MLS (e.g., for buyer closing costs), so long as they are not limited or stated for cooperating broker compensation. Local MLSs may/ may chose not to adopt fields for this disclosure.
   • Berkshire MLS Rules? Buyers have always been able to ask the seller to pay closing cost credits as part of their transition.  Now, Sellers can direct their broker to offer their home for sale with closing cost credits, if desired.  In MLS, we have chosen not to add a field for concessions because it isn’t binding.  Sellers may offer buyer incentives like CLOSING COST CREDITS, only as long as they are not limited, and NOT directed for the use of compensation payments. The buyer can use concessions, according to their loan restrictions, to pay for any of their closing fees. Any concession, just like now, would have to be stated and agreed upon in the final Purchase agreement or addendum.

10. Cooperate when asked
    MLSs must agree to cooperate with plaintiffs by providing non-attorney-client privileged information. Fun!