Let’s talk about something that’s been stirring the pot lately — exclusive listings and buyer agency. There’s been a lot of chatter about the Clear Cooperation Policy, buyer access, and how these things affect homeowners and agents alike.

I’ve heard concerns about whether exclusive listings limit buyer access or open sellers up to lawsuits.

Let me break it down for you.

Back in the day, when buyer agency came into play, the argument was that sellers couldn’t exclude buyers from seeing a property — the reasoning was this: what if buyers could sue for being denied access? Now, with buyers paying their own commission in many cases, the question is even sharper. Why would a seller risk getting sued for not allowing showings?

The crux of the debate hinges on homeowners’ rights when listing properties exclusively with their agent of choice. Historically, exclusive listings were the way real estate was done. A homeowner could choose to list their property with one agent who would handle all the marketing and sale responsibilities. Then, with the rise of buyer agency, the introduction of the Clear Cooperation Policy threw a wrench into that traditional model. The policy requires listings to be shared with other agents within the Multiple Listing Service (MLS) to give all buyers the opportunity to view the home, while limiting a homeowner’s control over who views or bids on their property.

The truth is, that wanting an exclusive listing isn’t about shutting buyers out. It’s simply about the seller deciding to hire one agent exclusively to market and sell their property. Now, let’s say a buyer comes along who’s working with another agent. As the seller, they are not excluding that buyer. They’re welcome to see the house! But for the listing agent who has the exclusive listing, that buyer would have to contact the seller’s agent themselves rather than view the home with their own agent.

What role would a buyer’s agent have, then?

Most listing agents choose to do a co-broker agreement with a buyer’s agent. So, if the buyer’s agent has a buyer for the listing, the listing agent would send them the co-broker form, they sign it, and boom—we’ve got a deal. That’s cooperation, and it gives the listing agent (and the homeowner) more control over who’s coming in and out of the property.

So, why would a homeowner want to limit showings or have just one company handling the sale? There are two big reasons. First, the seller might not be in a hurry. They may want to control who comes into their home. Maybe they don’t want dozens of agents traipsing through with buyers. They want fewer showings, more control, and peace of mind.

I know what some of you might be thinking: “Isn’t that discriminatory?” No, it’s not. Fair housing laws are very clear: discrimination means denying home ownership based on race, color, creed, or any other protected class. But, if a homeowner wants fewer showings because they’re not comfortable with a certain agent or want more control over the process, that’s their right. You can’t force a homeowner to work with an agent they don’t want to work with.

Here’s the REAL problem…

Now, what’s really problematic is telling homeowners they have no choice and that every agent under the sun can bring buyers through their door. That’s what the Department of Justice is saying is the problem — they’re calling the real estate industry a “cartel” and forcing homeowners to let anyone and everyone in. If a homeowner wants to limit access to protect their peace of mind, they should be able to do that. It’s their home! Their secure, private space. They should have control over who comes into that space.

Exclusive listings aren’t new. They were the industry standard for decades! Believe it or not, agents very rarely faced issues of discrimination before the Clear Cooperation Rule was established about six years ago. So, that begs the question: if the real estate industry was doing something wrong, don’t you think we would’ve seen lawsuits back then? I certainly think so! I believe all this lawsuit talk now is simply justification for a bad rule.

Isn’t Discrimination an issue?

One of our POWER AGENTS® brought up a good point — she asked, “Darryl, what if we end up with lawsuits from buyers who feel they’re being excluded?” It’s easy to see where this agent is coming from, but guess what? There’s always a “what if.” Could that happen? Sure, and you could also get struck by lightning tomorrow. The decades of experience the industry has under its belt prove that this system worked just fine for a very long time.

So, what should we do about the Clear Cooperation Policy?

Here’s the truth: This will very likely go away. It’s not happening next week or even next month, but it will disappear in the coming months. Why? Because it’s a direct violation of antitrust laws, and the Department of Justice is going to shut it down. This means that real estate professionals need to be ready for this inevitability.

Here’s how you prepare: focus on listings. Agents without any listings are going to be left behind. Much like the old game “Musical Chairs”, agents who aren’t ready when the music stops won’t have a chair to sit in. If you don’t have listings, you won’t have control. The agents who master the ability to secure listings are going to thrive and everyone else will be left in the dust.

The Takeaway

I know some of you might think, “But, this clear cooperation policy is a good thing,” or “We’re going to see lawsuits for discrimination.” It’s tempting to think that, but don’t get stuck in that pattern of thought. Believe it or not, all of these changes are opportunities in disguise, so being ready for them is how you separate yourself from your competition. So, embrace the changes, get better at securing listings, and let’s move forward stronger together. You’ll be ready, and you’ll be ahead of the game.

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