While it’s not a huge issue in our region, the MLS Board of Directors has made a change to our policy for members that do business exclusively outside of Berkshire County. A new NAR mandate requires that we offer “MLS of Choice” for agents that work in an office that is a member of our MLS, but who do no business here.  Currently, all members of a participating office must pay monthly subscription fees to the Berkshire MLS, even if that member doesn’t do business in Berkshire County.  For our board, this most often occurs when:

1. NY/VT or CT licensees are a part of firms on the border states – they can’t sell in MA, yet they have to be a subscriber in our MLS because their firm holds membership here.
2. When firms outside of our area have only a few agents that work in Berkshire County, and the rest of their agents work in other parts of the state.

In both instances, in the past we’ve allowed firms to set up a Berkshire branch office to house only those agents who want to work/join here, but now that will be unnecessary. Our new rules will allow brokers to maintain a single office but request a waiver of MLS fees for any member that does business elsewhere and can show proof of membership in another MLS where they are actually practicing real estate.

If a member waives out of MLS membership in Berkshire County, they will receive no access or benefits of the service or system.  That means there is no offer of compensation, no access to the database, private property information, the forms, the systems or the services of MLS at all.  If a waived out member is found to have been using the service, there is a fine and prorated fees back to when they waived out.

Here are the regulations that were added (or click here for a full copy of the MLS Rules and Regulations, latest version with edits in red):

Section 6.1 – Subscriber Fee Waivers:

Subscription fee waivers are available for licensees in offices participating in MLS, provided the participant and any fee-waived licensees meet all the following requirements:

1. Any fee-waived licensees must be a subscriber in another multiple listing service, and;
2. During any period for which a licensee’s fees are waived, the licensee shall refrain from using any of the services of this MLS included but not limited to:
   1. Fee-waived licensees may NOT access or use the information stored in the MLS, in any manner whatsoever, directly or indirectly. Such access and use includes, but is not limited to, use of the MLS database, MLS reports or listing sheets, IDX or VOW data on their site or page, automated valuation products or tools.
   2. Fee-waived licensees may NOT use the services of the MLS. Such service includes but is not limited to MLS tours, training, or utilizing any other product, service or benefit of the Multiple Listing
   3. Fee-waived licensees shall NOT possess, control, or use a lockbox key to enter, view, or show any property that is listed in the MLS;
   4. Fee-waived licensees may NOT use affiliated or licensed vendors’ products that permit access to and use of any listing information from the MLS;
   5. Fee-waived licensees may NOT use, directly or indirectly, information from the MLS to list properties for sale or lease, to identify or locate properties for any potential buyers or lessees.

MLS requires participants to sign a certification for nonuse of MLS services, which includes penalties and termination of the waiver if violated.

Section 6.1.2 – Process for Obtaining and Maintaining Waiver:

The participant must at all times provide to MLS up-to-date information on all licensees, whether they are subscribers or fee-waived licensees, in each participating office.

Participant shall notify the MLS within five (5) business days of any change in status for subscribers and any change in qualifications of fee-waiver licensees.

In order to obtain a waiver for any licensee in the participant’s office, the participant must certify the MLS’s form for listing fee-waived licensees. In order to maintain a waiver for any licensee, the participant and licensee must continue to satisfy the requirements of Section 6.1.1 and must recertify of the matters addressed in this Section with the frequency set by this MLS.

Section 6.1.3 – Revocation of Waiver:

The fee waiver for a licensee may be revoked under various circumstances, and the consequences of the revocation vary depending on its circumstances, as provided in this section.

1. The participant may revoke the waiver at any time upon notice to this MLS. Upon such notice, the fee-waived licensee immediately becomes a subscriber. Any fees due to MLS under its normal fee schedule and any application fees (if applicable) shall immediately become due and payable.
2. Violation of the conditions of a fee waiver will result in automatic revocation of the waiver. The Participant will be assessed MLS Subscriber fees, retroactive to the date of the current fee waiver, plus a $500.00 non-compliance fee for each revoked fee waiver. Non-payment of the fine and retroactive subscriber fees within seven (7) days of notice to the participant will result in a suspension of MLS access for participant and all subscribers associated with participant.

Section 6.1.4 – Consequences of Repeated Violations:

If a participant or subscriber exhibits a pattern of repeated violations of Section 6, the MLS may suspend all fee waivers for the participant and/or subscriber for a period of up to three years. If, after such a period of suspension, a participant or subscriber again exhibits a pattern of repeated violations, MLS may permanently terminate fee waivers for the participant and/or subscriber. In the event a participant or subscriber subject to suspension or termination of waivers moves to a new office as a participant, that office shall be ineligible for waivers during the pendency of its participant’s suspension or termination. In the event a participant or subscriber subject to suspension or termination of waivers moves to a new office as a non-principal licensee, that non-principal licensee shall be ineligible for waivers during the pendency of his or her suspension or termination.