Pocket Listings Yes or No?

David Goldsmith

All Powerful Moderator
Staff member
Judge turns the tables on claims that banning pocket listings is somehow "anticompetitive."
Out of pocket: Judge strikes down challenge to NAR’s off-market listing ban

After more than a year of litigation, the battle over the National Association of Realtors’ ban on off-market listings is over for now.

A federal judge permanently dismissed a lawsuit challenging the National Association of Realtors’ controversial policy, in effect since last year, that attempts to curtail so-called “pocket listings.”

The trade association’s Clear Cooperation Policy requires brokers to submit listings to a multiple listing service within a day of marketing a property to the public, preventing them from publicizing listings without making them available to other agents.

NAR’s board approved the policy in November 2019, arguing that it would increase transparency.

Some brokerage executives supported the move. Redfin CEO Glenn Kelman spoke out against pocket listings in May, arguing that they enable discrimination against minority homebuyers and provide an unfair advantage to brokers on the high end of the market.

In the lawsuit, Top Agent Network, a platform for the top 10 percent of agents in a market by sales volume, argued that the move was damaging to its business model, which profits off of giving those agents access to exclusive listings ahead of time.

Starting in May 2020, the San Francisco-based network slapped NAR with three successive antitrust lawsuits, each to no avail.

In a ruling filed Aug. 16, U.S. District Judge Vince Chhabria ruled that although TAN made a “reasonable” argument that the Clear Cooperation Policy was anticompetitive, it was in fact TAN that would run on an anticompetitive business model if the challenge succeeded.

“The Policy leverages NAR’s control of the real estate market to coerce most agents into giving up their off-MLS activities entirely, without regard to the competitive value of those activities,” Chhabria condeded, while noting that TAN’s model, which lets agents conceal listings from NAR’s subscribers while benefiting from NAR’s multiple listing service, undermined its case.

TAN agents can use information from NAR to make their public and exclusive listings more competitive, while agents who aren’t members of TAN don’t have access to that kind of intel.
Then, when sellers list homes with TAN agents without listing it on the MLS, competition for that home decreases, Chhabria said.

Thus, TAN was the wrong plaintiff to bring an antitrust suit over the policy, he said, as plaintiffs can’t use antitrust law to shield their own anticompetitive activities.

An antitrust concern could be raised, however, if the network were open to everyone and could show how the policy was causing members to leave, Chhabria continued.

“What TAN’s complaint fails to reckon with is that listings are just information, and competitive marketplaces generally thrive on open information,” Chhabria wrote. “Indeed, the point of the MLS is that such platforms are necessary for facilitating home sales. … And keeping that platform running and operational requires setting rules that ensure fair play among members.”
 

David Goldsmith

All Powerful Moderator
Staff member
While REBNY officially discourages pocket listings, and the Universal Co-Brokerage Agreement bars promoting pocket listings to sellers, a number of brokers are publicly pushing pocket listings (and privately pushing false narratives of advantages to sellers) and as far as I can tell REBNY has taken no action.
 

David Goldsmith

All Powerful Moderator
Staff member

New York Sees a Surge in Off-Market Luxury Deals​

With inventory tight, homes are getting scooped up before the listing is public​


When billionaire Jacqui Safra hired Nikki Field to sell his New York City penthouse last year, he made a series of demands. Mr. Safra, a descendant of the Lebanese-Brazilian banking family, told the real-estate agent she had three months to quietly drum up interest in the Upper East Side triplex without listing it on the public market, Ms. Field recalled.
There were no professional photos of the Fifth Avenue co-op—just one snapshot of Central Park taken from the terrace—and Ms. Field, of Sotheby’s International Realty, was given access to the apartment for a single day of showings.

Ms. Field said she set the asking price at $40 million the day before showings took place in May. Seven billionaires came to tour the roughly 7,000-square-foot apartment with a glass conservatory on the top floor, where Mr. Safra had lived for about 30 years. Five made offers, she said, and when she asked for their “best and final” bids, one billionaire offered $60 million if they could seal the deal within the hour.

They immediately sent out a contract, Ms. Field said, and the buyer signed it and sent it back 30 minutes later with a $6 million deposit. The deal closed in August.
Off-market deals like Mr. Safra’s are fueling a rebound in New York City’s luxury market, which ground to a halt during the pandemic. In 2021, at least five of the top 10 residential real-estate sales in Manhattan took place with no active listing associated with them.
Agents said the approach—common in markets like Los Angeles and the Hamptons—is gaining traction in New York City, and not just in the upper echelon of the market, where private sales have long appealed to discreet buyers and sellers. Across the luxury sector, agents say, sellers are testing the rapidly changing market with whisper listings.
Meanwhile, limited inventory and pent-up demand are pushing buyers to angle for deals where and when they can find them, ushering in a new way of doing business.

“We are matchmaking,” said Clayton Orrigo, a real-estate agent at Compass. Off-market deals typically account for about 4% of his team’s annual sales, he said, but last year that number shot up to 28%.

In addition to Mr. Safra’s sale, recent off-market deals have included billionaire investor Daniel Och’s sale of a Manhattan penthouse and a one-bedroom unit at 220 Central Park South for $188 million, roughly double what he paid just over two years ago, The Wall Street Journal reported.

Joseph Tsai, co-founder of Alibaba and owner of the Brooklyn Nets, paid $157.5 million for two full-floor units and a smaller apartment at the building in another off-market deal last year. And Australian hedge-fund manager Greg Coffey, nicknamed the “Wizard of Oz,” bought an Upper East Side townhouse for $53.5 million in an off-market deal, records show. The seller was New York real-estate developer David Levinson.
Julia Koch, widow of billionaire industrialist David Koch, has been quietly shopping the couple’s 18-room co-op at 740 Park Avenue, seeking around $60 million or more. Earlier this year, a penthouse at 70 Vestry Street was available for $79 million, according to people familiar with the property. The owner is Italian businessman Silvio Scaglia, who recently split from Julia Haart, star of the Netflix reality series “My Unorthodox Life.”
While figures are hard to come by for deals intentionally kept out of the public eye, off-market sales of properties $4 million and up surged more than 75% in 2021 from 2020, and 17.5% from 2019, according to real-estate data analytics firm UrbanDigs. Excluding new development units, which are often intentionally held back, off-market deals $4 million and up rose 96.7% in 2021 from 2020.

Historically, off-market deals in New York were a rarity thanks, in part, to the industry group the Real Estate Board of New York, which discourages whisper listings. “I just don’t think it’s in the best interest of the seller or the buyer,” said Diane Ramirez, chief strategy officer at Berkshire Hathaway HomeServices New York Properties, who is co-chair of Rebny’s residential board. She said the entire market of buyers needs access to a listing for sellers to get the best price in a reasonable amount of time. “When you whisper a listing, you’re eliminating everyone who doesn’t hear the whisper,” she said.

Agents say the transparency of listing sites also has made the market efficient—meaning properties can fetch top dollar when they are offered to the widest possible buyer pool.

The exception has been for the most exclusive properties. Like fine art, homes with unique architecture and design sometimes don’t need mass market-style publicity, said Adam Modlin of Modlin Group. “You know who the collectors are,” he said. “You just call them.”
Last year, Mr. Modlin represented both sides of the deal when Mr. Levinson sold his Upper East Side townhouse to Mr. Coffey. He also brokered the $25.7 million off-market sale of a four-bedroom condo at 160 Leroy Street in downtown Manhattan. The identities of the buyer and seller couldn’t be determined.
Mr. Modlin said discretion and privacy are top priorities for his well-heeled clients, some of whom prefer whisper campaigns to public listings that splash photos of their bedrooms and private living spaces all over the internet. “It does get very personal,” he said.
The phenomenon accelerated during Covid, especially early on, when holding open houses was verboten. Later, sellers rejected the idea of crowds traipsing through their homes, preferring to vet one or two potential buyers. As some New Yorkers moved out of the city, listing properties off-market was a way to sell quietly without broadcasting the decision to business associates or starting the “days on market” clock on listing websites.

In the case of Mr. Safra, for example, Ms. Field said he didn’t want to publicize the listing if it wasn’t going to be successful. “If it was out there and he didn’t sell it,” she said, “he’s got a damaged listing.”

By the middle of last year, New York’s real-estate market had picked up, with luxury sales leading the way. Luxury sales in the fourth quarter of 2021 jumped 87.4% year-to-year and 48.6% from 2019’s fourth quarter. Demand quickly depleted the available inventory, which dropped 7.8% year-to-year in the fourth quarter.

Agents said some sellers are holding back inventory because they are unsure where prices are headed. Meanwhile, buyers are eager to get off the sidelines. Some have scooped up properties before they hit the market. For ultra-high-net-worth buyers and investors, whose wealth often grew during Covid, agents are hunting for off-market properties to generate deal flow.

“A lot of the phone calls I’m getting are from people who have come up short on their search,” said Tal Alexander of Douglas Elliman, who last year brokered an off-market deal for a penthouse at 421 Broome Street in SoHo that sold for a record $49 million about a year after trading for just over $35 million. Mr. Alexander was also involved in the $29 million off-market purchase of pop star Justin Timberlake’s penthouse at 443 Greenwich Street last year, and a $26 million off-market sale at 432 Park Avenue.

Mike Fabbri, an agent at Nest Seekers International, said he is currently shopping a four-bedroom condo on the Upper East Side for between $9 million and $11 million. “With the pandemic, pricing right now is all over the place,” he said. By testing the waters off-market, Mr. Fabbri said he is getting a sense of what buyers would pay before officially listing in the spring. “But if they get an offer at $11 million, they’ll take it and run,” he said, “and we won’t even list it.”

Earlier this year, Kayak co-founder and CEO Steve Hafner and his wife, Staci Hafner, sold their condo at Walker Tower in Chelsea for $23.5 million in an off-market deal. The couple listed the four-bedroom for $24.995 million in November 2020, but Mr. Hafner said they decided to rent it out after relocating to Miami. Halfway through a two-year lease, the tenant, whose identity couldn’t be determined, asked to buy the condo. “We quickly reached an agreement,” Mr. Hafner said. The deal closed in December.
For motivated buyers, paying a premium is worth it to secure a coveted property. Amazon founder Jeff Bezos paid $23 million in July to buy an off-market condo at 212 Fifth Avenue, where he already owns a triplex penthouse and two other units. The seller, Madison Flatiron LLC, paid $18.1 million in 2018, records show.

At lower price points, agents say off-market deals can have a big impact on price. When sellers have the upper hand, buyers may end up overpaying; without multiple bids, sellers risk leaving money on the table.

Developer Robert Kaliner of RoundSquare Builders recently scooped up adjacent townhouses in the West Village in separate off-market deals, paying about $9.3 million for 107 Bank Street and $8.8 million for 105 Bank Street. Mr. Kaliner, in business with his sons, Justin and Jared, said he met the sellers of 107 Bank first, through agents Matthew Lesser, Matthew Pravda and Ravi Kantha of Leslie J. Garfield, who heard they were thinking about selling.
Mr. Kaliner, who plans to combine the buildings into a roughly 40-foot-wide townhouse designed by Robert A.M. Stern Architects, said negotiating a deal off-market kept bidding from getting “excessively high.”

“We got a far better deal on these because they were off-market,” he said.
Gabriel Nussbaum, a filmmaker whose family sold 105 Bank, said he studied neighborhood comps and felt the price was fair. Mr. Nussbaum, 39, said he has been approached many times about selling the building that his great-grandmother purchased for a few thousand dollars in the 1940s, but the timing was never right. Mr. Nussbaum has been living there for 20 years and said the building was in need of repair. Recently, his family considered renovating, but they were put off by rising construction costs and the time it would take to complete the project.

After Mr. Kaliner bought his neighbor’s home, Mr. Nussbaum asked if the developer wanted to buy his property, too. “I feel like we got a very good price,” he said. “This was definitely the bird in hand.”
Cassie Murdoch, 43, and her husband, Jack Fagan, 51, are hoping to sell their Brooklyn home privately. Prior to Covid, Ms. Murdoch, a digital producer, and Mr. Fagan, a stay-at-home dad, began renovating the Windsor Terrace house they bought for $1.4 million in 2018. The project would have expanded the home into what their agent, Abigail Palanca of Serhant, said would be a roughly $3.6 million property. But after demolishing the interior, their contractor went out of business, and the couple lost their appetite for completing the project. Given the unique circumstances, and since the house isn’t photo-ready, Ms. Palanca advised a whisper marketing campaign to find a buyer.

Barbara Fox of Fox Residential recently sold an approximately 6,000-square-foot apartment on Fifth Avenue for north of $25 million for clients who moved to their country home during Covid. She said the longtime owners preferred a whisper campaign because they didn’t need to sell, weren’t entirely sure if they wanted to sell and didn’t want the world knowing their plans.
The co-op was unofficially on the market for two years, and Ms. Fox said she thinks it might have sold in weeks had she been allowed to blast out the listing far and wide. Still, she said, “they didn’t care.”

 

David Goldsmith

All Powerful Moderator
Staff member
If this article is accurate could the "real" Manhattan supply be over 6,000?

New York elites are snatching up luxury real estate using a method that's against many realtors' code of ethics​

  • More New Yorkers are buying off-market homes, known as "whisper" listings.
  • It's a way for them to circumvent a tight, increasingly expensive real estate market.
  • While it's boosting NYC's economy, it's also undermining fair housing laws.
In New York, people with the right money and the right connections are purchasing real estate before it goes on the market.
While so-called "whisper," "pocket," or "off-market" sales aren't new, they provide a major advantage at a time of limited housing availability and outsized demand — and many realtors say they are unethical. They're also surging in one of the most expensive cities in the world.

According to Redfin, the amount of off-market transactions in the US has increased 67% since 2019. In New York City alone, 20.6% of homes that were sold in the third quarter of 2021 were pocket listings. The Wall Street Journal reported that 2021 saw a total of $188 million in off-market sales in the city.

Why Hong Kong is the most expensive housing market in the world.
So, what's the impact on the population?
Pocket listings happen when agents tell potential buyers of a property that isn't yet listed on a multiple listing services (MLS), the databases of properties for sale shared between agents and brokers. This gives the buyer a chance to make an offer without competition.
"Whisper listings have always been very desirable," Cathy Franklin, a New York City-based Corcoran agent, told Mansion Global, a luxury real estate listings site. "It allows a purchaser to have a first look before there's a larger audience."
In California, pocket listings are in a legal grey area. And in a 2019 fair-housing initiative, the National Association of Realtors introduced a policy that attempted to restrict these types of transactions. Despite NARs efforts, the practice remains popular in New York among real estate agents who aren't NAR members. Those agents can still do them, but they can also be sued for not following proper procedure.
"[Although] pocket listings remain a common practice; they can exacerbate segregation and wealth inequality because only certain people are seeing certain listings," mortgage adviser Arnell Brady wrote in a Redfin report.
As New York rebounds from the COVID-19 pandemic, housing is shining a bright spot on the economy. However, lackluster inventory has increased prices and intensified homebuyer competition. To circumvent a tightening market, many wealthy buyers in the Big Apple are no longer relying on MLS for leads but instead participating in off-market transactions. They are driving real estate growth, but also undermining fair housing laws and escalating a worsening inventory crisis.
"Actively discouraging submission of listings in the is inconsistent with the fundamental cooperative nature of the MLS and the obligation of the Code of Ethics," a NAR spokesperson told Insider, adding that the policy "was created in order to protect the best interest of consumers and promote equal opportunity for all by ensuring that publicly marketed property listings are widely available and accessible to all consumers."
 

David Goldsmith

All Powerful Moderator
Staff member
"Off market" unit sells for $29 million. On market unit lists for $35 million. Think about that the next time someone tries to convince you that giving them a pocket listing is in your best interest.
Timberlake’s former penthouse hits market 2 months after sale

Unit PHG in 443 Greenwich asking $35M, $6M more than January sale price​

Just two months after Justin Timberlake said “Bye Bye Bye,” to his penthouse apartment at 443 Greenwich Street, the unit is back on the market.
This time, unit PHG is asking $35 million. Timberlake and wife Jessica Biel sold the penthouse in January for $29 million. The couple picked up the home for $20.2 million in March 2017.

The buyer’s — and now seller’s — identity was shielded behind Menemshovitz NY Realty, a corporation registered in Delaware. The shell company has popped up in property records recently as the seller of an 8,000-square-foot penthouse at 421 Broome Street, which flipped in November for $49 million in an off-market deal.

An entity connected to the buyer also spent $33 million on a 6,400-square-foot townhouse and three-bedroom apartment at 17 Jane Street in the West Village.

Tal Alexander of Douglas Elliman has the listing and represented the buyer in acquiring the unit two months ago. Alexander declined to comment.

The penthouse has 5,300 square feet of interior space, along with a 2,646-square-foot custom terrace. Inside there are four bedrooms, all with en suite bathrooms, a laundry room and two half bathrooms.
The north-facing primary suite, which occupies its own wing, includes a sitting area and a steel-wrapped gas fireplace. A white oak and glass staircase connects the great room and terraces to the main floor, lined with nine north-facing windows.

Timberlake and Biel were just two of the famous names MetroLoft Management’s 443 Greenwich counts as tenants both past and present, including Blake Lively and Ryan Reynolds, Jennifer Lawrence and Harry Styles.

Amenities in the eight-story, 53-unit building include a 70-foot long indoor swimming pool with Turkish baths, fitness center, children’s playroom, wine storage and a 5,000-square-foot landscaped roof and a central courtyard.
In November, Formula One champion Lewis Hamilton sold his penthouse in the building for $49.5 million, the unit’s asking price, to a shell company registered in Seattle.
 

David Goldsmith

All Powerful Moderator
Staff member

NAR’s ban on marketing ‘pocket listings’ messes with Texas​

Lone Star brokers say national policy upends local business models​

Texas real estate agents call it serving the customer.
Their primary trade association says it makes them “dirty players.”

That’s the standoff that has yet to be sorted out in the wake of the National Association of Realtors campaign to ban members of its local chapters from marketing homes not entered into their MLS. Prohibition on such deals — known as “pocket listings” — flies in the face of longstanding business practices in Texas, where the under-the-radar deals are often preferred as a way to avoid reassessments that hike property tax bills.

Many high-end Texas sellers — and buyers — want to keep their home prices out of public view for tax purposes, since property taxes are so high in a state that eschews income tax. And the concern is not unfounded. In May, the Austin Board of Realtors sent a cease-and-desist letter to the Hays Central Appraisal District, citing unauthorized use of its MLS data to determine home values.

The policy NAR is pushing is simple: Any broker must submit a listing to the MLS within one business day of marketing the property through public-facing websites, email blasts, multi-brokerage listing sharing networks, social media or other methods.
Since the MLS is public, the so-called “Clear Cooperation Policy” is supposed to ensure that all homes for sale are accessible to all other brokers and potential buyers, according to NAR.

“It was basically designed to prevent unfair advantages and keep everybody on the same playing field, and keep consumers with the most accurate information,” said Shana Acquisto, incoming president of the Collin County Association of Realtors, a North Texas affiliate of NAR.

Capturing all sales in the MLS also benefits NAR, of course, because it improves the quality of the data that the association collects for its reports
But Texas brokers and agents — some of whom would only comment under the condition of anonymity for fear of what they said could be retaliation from NAR — complain that the policy unfairly restricts the services they can provide sellers who don’t want their homes listed in the MLS.

“With the new policy, you also cannot market it” as a pocket listing, one broker said. “As soon as you market it, it has to go into MLS.”
Agents are allowed to share listings within their brokerage without entering it into the MLS, but realtors complain that this is unfair to smaller shops.
“It limits the people who are not part of a big office. You’re being discriminatory against a small office,” said another agent who also wished to remain anonymous. “Everybody’s just trying to do the best job possible, and they’re making it harder.”

Brokers caught marketing a home not entered in the MLS can face fines and other penalties.
NAR left it up to its local affiliates to interpret and police the rule, which makes enforcement uneven, especially in Texas. The Austin Board of Realtors doesn’t even acknowledge the rule, according to some brokers. Meanwhile, in Dallas, the fines start around $1,000 and can go up to $2,500 — and after a third offense, a broker can lose their license.

Off-market deals are not unique to Texas, but they are certainly more common in the Lone Star State than elsewhere. According to one Dallas broker, the proportion of homes sold off the market in the DFW area is around 30 percent, even as public listings have spiked. A 2021 report from Redfin put the national figure at only 4 present.
While it’s mostly sellers of the most expensive homes who want to keep their listings out of public view, even homeowners at the other end of the market may want to sell off-market, according to Dallas-area realtor and lawyer Chandler Crouch.

“I have clients that have a house they want to sell that is not in good shape and no owner or occupant is going to buy it, so they have to sell it to an investor,” Crouch said. “Some investors will pay significantly more for a property not listed on the MLS.”

In that case, the NAR policy can actually pressure an agent to go against their legal obligations to the seller.
“The obligation that I have as a fiduciary to my client is to put their interests first — that should be what our system relies on,” said Crouch. “And if I’m not doing that, then I’m breaking the law.”
Acquisto speculated that much of the local pushback against the policy is driven by what she called “dirty players” who get a power trip from lording their access to off-market deals over other brokers.

“I think how it’s affected is the ‘dirty players,’ they don’t like it. Because they kind of have control and like to be the one everyone has to go to because they have a secret listing,” she said. “So it’s kind of a power move, I guess.”
But some Texas brokers see the policy as NAR putting its own interests over that of the sellers its members are supposed to serve.

“Is your angle to do what is in the best interest of the property owner or what’s in the best interest of the Board of Realtors?” Crouch asked.
 

David Goldsmith

All Powerful Moderator
Staff member

Strategic Analysis: The Top Threat to Real Estate Portals

Real estate portals occupy a dominant position across the industry. Jealous of that power, potential competitors have long tried to challenge the status quo, with limited effect. But now a new threat emerges that, while still a long shot, possesses the greatest potential to disrupt the dominant position of the portals.

The Competitive Strength of Portals​

Real estate portals benefit tremendously from network effects, which is the key factor that gives them unprecedented market power and an impregnable moat to repel competition.

Network effects is the phenomenon whereby a service becomes more valuable when more people use it. Online marketplaces and social networks such as Facebook, eBay, and Craigslist are classic examples of businesses with network effects.

Businesses that have the benefit of network effects are incredibly difficult to displace. Even if a new entrant’s product is objectively better, a smaller audience of potential buyers and sellers results in an inferior consumer proposition. Sellers want to advertise to the biggest audience possible, and buyers want the largest selection possible.

Real estate portals like REA Group in Australia and Zillow in the U.S. have a dominant competitive position because they have millions more buyers than any other platform. This key attribute, enabled by network effects, results in leading portals easily maintaining their leadership position against well-funded competition.

The Rise of Exclusive Content​

In the past, various competitors have tried a variety of strategies to displace the dominant portals: product differentiation, massive media spend, brokerage alliances, and more. But time and again these strategies have failed.

There is one significant risk -- an achilles heel -- to portals: they don’t control their inventory. Disintermediating the flow of listings to the big portals, through exclusive content, is their greatest threat.

To illustrate this concept, look no further than video streaming services. Netflix, Disney+, Amazon, and AppleTV are investing billions into creating exclusive content. And this content -- available on only one streaming platform -- is the key differentiator that draws consumers to the service.
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When it comes to browsing for real estate, consumers want access to all of the available inventory. If a certain portion of listings are held off-market, available exclusively on another platform, consumer eyeballs will naturally follow.

More than any other strategy, exclusive content has the potential to draw consumer eyeballs away from the dominant portals. But ultimately, while the move is pro-disruptor and anti-portal, it is also potentially anti-consumer, putting the benefits of a company ahead of consumers.

Industry Fragmentation and Consumers​

For consumers, exclusive content creates a fragmentation of the search and discovery process. It forces buyers to visit more than one site, with no direct benefits. For sellers, it fragments and artificially reduces the number of possible buyers.

The only beneficiary is the portal disruptor -- the organization creating and promoting the exclusive content. By bringing more consumers directly to their web site, it creates a realignment of power from the portals to the disruptor.

What real estate portals brought to the market was transparency: easy access to all available listings. In the U.S., they democratized the search process by eliminating the information asymmetry between consumers and real estate agents. Fragmenting inventory across multiple platforms is a step backwards into the dark ages of real estate, where consumers no longer have easy access to all available listings.

Case Studies​

The following case studies illustrate examples of exclusive content being leveraged to break the monopoly powers of portals. And some portals are fighting back, directly and indirectly, by promoting themselves as the most effective place to advertise a home for sale.

There are three case studies of real estate portal challengers attempting to disrupt the top portal: two large brokerages, and one challenger portal. The analysis concludes with a case study of what one top portal is doing to push back against exclusive content.

Case Study: The Challenger Portal​

OnTheMarket is an upstart, industry-backed portal meant to challenge the dominance of Rightmove and Zoopla in the U.K. It launched in 2015 and has faced a slow, uphill battle to achieve relevance.

One of the legs of its strategy is around exclusive listings: “thousands of new properties a month, 24 hours or more before they are advertised on Rightmove or Zoopla.” According to OnTheMarket, this amounts to between 2,500 and 10,000 properties each month.

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The strategy is credited with increasing the portal’s traffic, but after years its traffic is still a fraction of the dominant portals in the market. It has helped the challenger portal grow and build relevancy in the market, but has done nothing to dent the dominance of Rightmove.

Case Study: The Traditional Brokerage​

Howard Hanna is the fourth largest brokerage in the U.S., with over 100,000 transactions closed in 2019. In June of 2019, it launched the Find It First program, where new listings are available only on the company’s web site, HowardHanna.com, for a set time before being published on the multiple listing service.

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The service launched in an effort to increase traffic to the company’s own web site by leveraging exclusive content not available anywhere else; a fact highlighted by the company.

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The benefit to potential home buyers is clear: register on HowardHanna.com to receive updates on exclusive content before they are posted anywhere else. The benefit to sellers is less clear. As the company says, “...it creates an urgency for their property to be offered first to highly motivated buyers, who are most likely to bring an offer.” But the pool of buyers is a fraction of the entire market: 2.1 million visits in July 2019 compared to over 700 million visits on Zillow.

Howard Hanna’s program offers another benefit for sellers, which is less about exclusive content and more a ding at Zillow’s business model: prospective buyers should be connected directly with the listing agent, who knows more about the property than anyone else. The benefit to consumers finding a property on HowardHanna.com first is that a connection to the listing agent can be made directly, without any intermediaries.

But the program is small. In September 2020 there were less than two dozen listings across the Northeast and Midwest. In February 2021, with over 20,000 listings in the Northeast, only 13 Find it First properties were found.

Case Study: The Tech-Enabled Brokerage​

Compass is the fifth-largest brokerage in the U.S., with over 80,000 transactions closed in 2019. As mentioned in my 2019 strategic analysis of the business, Compass has an active history of promoting exclusive listings, either coming soon or private exclusives.

What sets Compass’ exclusive content strategy apart from others is its traction and promotion. Compass is not shy about promoting exclusive listings on the compass.com web site: it’s featured on the header and is highlighted immediately below the search bar.

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All search results pages highlight private exclusive listings, which are only available to home buyers that contact a Compass agent. The fact that there are more listings that can be shown is dangled in front of consumers in a very prominent way.

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Clicking through for more information on private exclusives makes it clear that to see more, you need a Compass agent. The additional listings are not available on “home search websites.”

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The concept of a private exclusive listing is not new; what’s new is the degree of in-your-face marketing applied to the program by Compass. In comparison, consider Sotheby’s International Realty, which has no mention of nor listings of private exclusives or coming soons. Sotheby’s is not leveraging the power of exclusive content, while Compass is -- in a big, aggressive way.

That fact is sprinkled throughout the Compass web site, subtly and overtly. On the search results filter page, visitors are reminded that a large amount of listings are “only on Compass.”

The value proposition for home buyers (which, by the way, are how the U.S. real estate portals monetize their traffic) is quite clear: exclusive content not available anywhere else.

The value proposition of a coming soon listing for home sellers is less specific: increase exposure, generate buzz, and deliver market insights. Again, all to a smaller audience than what the national real estate portals deliver.

With regards to the seriousness of Compass’ program, the numbers paint a clear picture. According to compass.com, in September of 2020 Compass had over 17,000 listings nationally -- with over 2,800 as exclusive content (either Coming Soon or Private Exclusive). These 2,800 listings (16 percent of Compass’ total inventory) were only available on compass.com or via a Compass agent; none were on Zillow.

And the percentage of listings exclusively on compass.com is increasing. As of February 2021 there were around 12,000 Compass listings nationally, with 2,800 “only on Compass” -- or 23 percent. Nearly a quarter of Compass’ listings are exclusive content. In one of Compass’ biggest markets, San Francisco, 504 out of 913 total listings were exclusively on Compass, a massive 55 percent.

The concept is perhaps best illustrated in Compass’ own words, through this LinkedIn post by a Compass agent. Note the key phrase: “I have inventory on our platform that will never get listed on Zillow or Redfin. Get a Compass agent...or miss out.”

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Case Study: The Incumbent Real Estate Portal​

REA Group operates the dominant Australian portal, realestate.com.au, which also happens to be the world’s most profitable real estate portal. The team at REA understands the value of network effects, and has built marketing campaigns around having “Millions More Buyers” than the competition.

REA faces a challenge in the Australian market: property owners that wish to sell their homes “off market.” Similar to Compass’ exclusive listings, these properties never get advertised on a national property portal, and reach an audience through existing networks and word of mouth.

REA has met this challenge -- and the associated risk to its market-leading position -- head on with a series of direct-to-consumer TV advertisements.

The rhetorical message to consumers is clear: why would you not advertise your biggest asset in the one place buyers will definitely look?

Power Moves​

The move towards exclusive content is about power. The organizations affecting this change are companies looking to grow revenues and maximize profits. The benefits of a potential shift in consumer eyeballs will accrue to these for-profit companies, at the expense of real estate agents and consumers.

There may be a short-term benefit for real estate agents, by reducing their reliance on a national portal, but that reliance just shifts to a different company. And it is that company, and no one else, that becomes the distributor of consumer eyeballs and leads to agents. The power remains with a company, and not with an agent.

Ultimately, the consumer may be the biggest loser. The creation of new advertising channels, especially in markets outside of the U.S., means that homeowners will need to pay an additional fee to advertise on those new channels. And, in the words of Compass, if listings “never get listed on Zillow or Redfin,” millions of potential buyers may never see them, which could lead to less demand and a lower price for a property, a cost paid for by homeowners.

Generating and publishing exclusive content appears to be one of the most effective possible strategies against the portals’ dominance. It is a relatively new, active battleground in the evolving war for the future of real estate. But as these billion dollar behemoths battle for supremacy of the real estate industry, with agents as their unwitting pawns, consumers may be left paying the price.
 

David Goldsmith

All Powerful Moderator
Staff member
https://www.businessinsider.com/new-yorkers-buying-luxury-real-estate-off-market-2022-3?amp

New York elites are snatching up luxury real estate using a method that's against many realtors' code of ethics​

  • More New Yorkers are buying off-market homes, known as "whisper" listings.
  • It's a way for them to circumvent a tight, increasingly expensive real estate market.
  • While it's boosting NYC's economy, it's also undermining fair housing laws.

In New York, people with the right money and the right connections are purchasing real estate before it goes on the market.

While so-called "whisper," "pocket," or "off-market" sales aren't new, they provide a major advantage at a time of limited housing availability and outsized demand — and many realtors say they are unethical. They're also surging in one of the most expensive cities in the world.

According to Redfin, the amount of off-market transactions in the US has increased 67% since 2019. In New York City alone, 20.6% of homes that were sold in the third quarter of 2021 were pocket listings. The Wall Street Journal reported that 2021 saw a total of $188 million in off-market sales in the city.

Pocket listings happen when agents tell potential buyers of a property that isn't yet listed on a multiple listing services (MLS), the databases of properties for sale shared between agents and brokers. This gives the buyer a chance to make an offer without competition.

"Whisper listings have always been very desirable," Cathy Franklin, a New York City-based Corcoran agent, told Mansion Global, a luxury real estate listings site. "It allows a purchaser to have a first look before there's a larger audience."

In California, pocket listings are in a legal grey area. And in a 2019 fair-housing initiative, the National Association of Realtors introduced a policy that attempted to restrict these types of transactions. Despite NARs efforts, the practice remains popular in New York among real estate agents who aren't NAR members. Those agents can still do them, but they can also be sued for not following proper procedure.

"[Although] pocket listings remain a common practice; they can exacerbate segregation and wealth inequality because only certain people are seeing certain listings," mortgage adviser Arnell Brady wrote in a Redfin report.

As New York rebounds from the COVID-19 pandemic, housing is shining a bright spot on the economy. However, lackluster inventory has increased prices and intensified homebuyer competition. To circumvent a tightening market, many wealthy buyers in the Big Apple are no longer relying on MLS for leads but instead participating in off-market transactions. They are driving real estate growth, but also undermining fair housing laws and escalating a worsening inventory crisis.

"Actively discouraging submission of listings in the is inconsistent with the fundamental cooperative nature of the MLS and the obligation of the Code of Ethics," a NAR spokesperson told Insider, adding that the policy "was created in order to protect the best interest of consumers and promote equal opportunity for all by ensuring that publicly marketed property listings are widely available and accessible to all consumers."

Pocket listings are a boon to NYC's economy, but threaten housing equality

After plunging during the pandemic, New York City's real estate market began to make a comeback in winter 2021 as residents came trickling back during the winter to take advantage of discounted apartments.

But the market really started to soar come spring when the city reopened. Properties in Brooklyn began to bounce back first, followed by a rebound in Manhattan.

"Since April, I don't think we've ever done this many transactions in such a tight period of time," Jeff Adler, a broker with Douglas Elliman, told The Financial Times in September.

The year ended on a record-breaking note, with more people than ever snapping up a home in Manhattan. Apartment sales hit a 30-year high in the fourth quarter of 2021 with 3,559 closed purchases of co-ops and condos, according to a report by Miller Samuel Inc. and Douglas Elliman Real Estate.

The median price of the apartments sold in the fourth quarter also soared to the highest they've been since 2018, at $1.17 million, with 9.2% of sales above asking price.

The snapback is a sign of market correction after the slump, Jay Parsons, vice president and deputy chief economist at real estate software company RealPage, previously told Insider. "You had a lot of pent-up demand from people who either temporarily left or were planning to move to the city at some point and put those plans on hold," he said.

While a hot luxury market is driving much needed revenue for the city's economy, it's creating stress for the many hopeful buyers who find themselves in cutthroat competition. That's why many are keeping their ears to the ground for off-market listings, which offer them a leg up over their peers.


 

David Goldsmith

All Powerful Moderator
Staff member

Supreme Court rejects NAR petition in pocket listing case​

Trade group fielding suit over Clear Cooperation Policy​

The Supreme Court is giving the National Association of Realtors the silent treatment as it fights a lawsuit pertaining to pocket listings.
The highest court in the land on Monday denied the real estate trade group’s petition for a “writ of certiorari,” which asked the court to review a ruling made by a lower court in the lawsuit filed by The PLS, Inman reported. SCOTUS’ decision came without comment.
The decision kicks the case back to a lower court, the U.S. District Court in the Central District of California, and allows it to proceed. It also overturns the decision by a lower court to throw out the case brought forth by the PLS, now known as the NLS.
“We are disappointed the Supreme Court has decided not to hear our appeal of the decision not to dismiss the case,” a spokesperson for NAR told the outlet, adding the group remained confident it would prevail.

The lawsuit accuses NAR, the California Regional MLS, Bright MLS and Midwest Real Estate Data of violating the Sherman Antitrust Act and California’s Cartwright Act.
The PLS brought the lawsuit after the defendants adopted the Clear Cooperation Policy, which forces listing brokers to submit a listing to their MLS within one business day of publicly marketing a property. The PLS formerly ran a private listing service, which was covered under the policy.
NAR has defended the CCP, arguing it was essential to protect consumers, giving them access to more information about market conditions. The PLS said the policy harms listing and buyer agents by restricting competition to Realtor-affiliates MLSs and threatening MLS membership suspensions for those who don’t comply.

The Justice Department has been investigating NAR over antitrust concerns. In 2021, the DOJ pulled out of a settlement with the trade group so it could pursue a further investigation of NAR.
The trade group has had more success in a different antitrust case involving pocket listings. In 2021, a judge struck down a challenge from Top Agents Network, which argued the CCP was damaging to its business model. The judge ruled TAN has an uncompetitive model itself while acknowledging its argument against the CCP was “reasonable.”
 

David Goldsmith

All Powerful Moderator
Staff member

Justice Department wants say in pocket listings case against NAR
Two weeks ago, the Supreme Court delivered a blow to the National Association of Realtors by allowing a “pocket listings” lawsuit to proceed. Now the Department of Justice is jumping into a similar case involving the trade group.

The agency is preparing to file an amicus brief supporting Top Agent Network’s lawsuit against NAR, Inman reported. Top Agent Network is appealing a decision in the case that favored Realtor associations.

The Department of Justice, which has been involved in real estate antitrust cases in recent years, said it may weigh into the case as a neutral party. But it also might support the plaintiffs as it seeks to maintain a competitive marketplace.

In May 2020, Top Agent Network filed a federal lawsuit challenging the real estate agent trade association’s Clear Cooperation Policy, a rule designed to eliminate pocket listings. DOJ is investigating the rule, a probe NAR sued to end. The agency nearly settled the case but changed its mind in 2021 to continue its inquiry.

Top Agent’s lawsuit alleges NAR and two other Realtor associations violated antitrust and unfair competition laws with the Clear Cooperation Policy, which requires listing brokers to submit a listing to their MLS within one business day of marketing a property.

A district court judge found the suit made a “reasonable argument” against the policy, but ruled against Top Agent anyway because the company’s business model was itself anti-competitive, as it restricts membership to top echelon of agents.

TAN recently filed the opening brief in its appeal, claiming NAR’s policy restricts consumer choice.

NAR has defended the policy, arguing it is essential to protect consumers by giving them access to information about market conditions.

This month, the Supreme Court denied NAR’s petition asking it to review the lower court’s ruling. The decision allowed a pocket listing case from the PLS — now known as the NLS — to proceed. The Justice Department filed an amicus brief in that case as well.
 

David Goldsmith

All Powerful Moderator
Staff member

Housing market: Jason Oppenheim warns of an 'armageddon' in the real estate industry
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The real estate industry could soon be upended, says star broker Jason Oppenheim.
Oppenheim – who leads a team of glamorous agents on Netflix (NFLX) reality series "Selling Sunset" – recently sat down with Yahoo Finance to talk about the current state of the U.S. real estate market. During the far-ranging conversation, he warned that the industry's commission structure could soon change forever.
"To be specific about real estate agents, we've got federal regulators and a couple of lawsuits coming down the pipeline that at worst case could be an armageddon for real estate agents," he said. "You might see regulators uncouple the commission structure where the seller is now essentially paying for the buyers' and agents' commission."

In 2019, two home-sellers filed a lawsuit [Sitzer et al v. National Association of Realtors (NAR)], alleging that several NAR rules violate the Sherman Antitrust Act, an 1890 law which prohibits activities that restrict interstate commerce and competition.
One of the NAR rules in question requires listing brokers to offer buyer brokers a commission to list a property. The lawsuit alleges that this practice inflates sellers' costs and, therefore, is anticompetitive.
Traditionally, it takes two agents to sell a house: a buyer's agent and a seller's agent. However, if NAR loses the suit, the real estate industry would effectively see buyers' agents removed from the equation. That means the number of real estate agents in the U.S. (there are 1.5 million right now, according to NAR), could drop precipitously .

"You could see hundreds of thousands of real estate agents leaving the profession, and major brokerages go out of business," said Oppenheim. "We're on the precipice of an armageddon that nobody talks about."

There's hope for a settlement with regulators or an appeal process, but there's a high likelihood the marketplace for real estate agents is about to get majorly overhauled, said Oppenheim. He added that we could see the U.S. ultimately turn towards a model with lower total commissions, as is the case in Australia.
"I think there are too many real estate agents anyway, so I don't think that's part of the problem," he said. "I think the problem is that if we remove the buyer's agent's commission, you'll see the listing agent representing the buyer in 90% of transactions. It's called dual agency," said Oppenheim. "I don't think that's healthy for the consumer, because I think that the buyer should have their own representation. It would be no different than going into a courtroom and you have one lawyer, representing both sides."
This could create a situation where the agent would have a fiduciary duty to one side, the seller, Oppenheim added.
In 2022, a federal court ruled that a private real estate listing service could sue the NAR over anti-competitive practices. Earlier this month, the U.S. Supreme Court rejected the trade association's attempt to challenge the ruling.
"It's something that's not talked about that much, and it could be difficult, probably more in 2024, but it's coming," Oppenheim said.
 
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