BARRISTER'S BRIEFING: The 5 C’s (and an S): Understanding Cold Calling, Clear Cooperation and Coming Soon

Brian Levine | April 2020

Brian Levine, Esq.

Today I’m writing from my makeshift office, looking out on the world that has changed drastically since my last article. So much has happened in a few short weeks and there is so much uncertainty for the weeks ahead. However, there are a few things that remain certain and it is these things that I would like to touch upon this month’s article. Those things are: (1) the state of emergency rules on cold calling; (2) the application of “Clear Cooperation” starting on May 1, 2020; and (3) the new “Coming Soon” status in OneKey MLS.

Prohibition On Cold Calling

General Business Law §399-z(5-a) provides as follows:

“It shall be unlawful for any telemarketer doing business in this state to knowingly make an unsolicited telemarketing sales call to any person in a county, city, town or village under a declared state of emergency or disaster emergency as described in sections twenty-four or twenty-eight of the executive law.”

With Executive Order 202, Gov. Andrew Cuomo declared a state of emergency on March 7, 2020. That state of emergency will continue until September 7, 2020, unless extended or otherwise modified.

As a result:

• A Realtor CANNOT solicit listings by telephone if there is no prior relationship;

• A Realtor CANNOT solicit a marketed “for sale by owner” property to list the property;

• A Realtor MAY call a “for sale by owner” property if they have an identifiable purchaser interested in the property;

• Realtor CANNOT contact expired listings, off market listings, canceled listings or withdrawn listings unless there is a pre-existing relationship between the homeowner and the Realtor.

All other types of communication are still permissible, meaning that a Realtor may continue to market themselves and their business through traditional methods such as mailers, billboards, social media, internet, etc.

Clear Cooperation

In November 2019, NAR’s Board of Directors approved MLS Statement 8.0, otherwise known as the “Clear Cooperation” policy. Clear Cooperation will be adopted by OneKey MLS on May 1, 2020.

Section 1.01 – Clear Cooperation:

“Within one (1) business day of marketing a property to the public, the listing broker must submit the listing to the MLS for cooperation with other MLS participants.”

“Public marketing includes, but is not limited to, flyers displayed in windows, yard signs, digital marketing on public facing websites, brokerage website displays (including IDX and VOW), digital communications marketing (email blasts), multi-brokerage listing sharing networks, and applications available to the general public.”

This advertising applies to all listings, active and non-active, including “Temporarily Off The Market,” “Canceled,” “Withdrawn” and “Coming Soon” listings.

Section 1.3 Exempt Listings:

“If the seller refuses to permit the listing to be disseminated by the service, the participant may then take the listing (office exclusive) and such listing shall be filed with the service but not disseminated to the participants. Filing of the listing should be accompanied by certification signed by the seller that he does not desire the listing to be disseminated by the service.”

It’s important to note that office exclusives are an important option for sellers concerned about their privacy and wide exposure of their property being for sale (for example, celebrities, divorce situations, etc.). In the office exclusive situation, an agent may directly promote the listing between brokers and agents affiliated with the listing brokerage, as well as one-to-one promotion between the agent and their clients, as this is not considered public advertising.

However, it is important to note that if an office exclusive is marketed to the public in any way, then the listing, pursuant to Section 1.01, must be submitted to the MLS within (1) one business day after the listing is publicly marketed.

Failure to comply with Clear Cooperation rules will result in a fine of $2,500.

“Coming Soon” Designation

Also effective May 1, 2020 is the new status of “Coming Soon.” OneKey Rules and Regulations states:

302.3 “Coming Soon – No Showings” Status

“a. Purpose. The purpose of the “Coming Soon – No Showings” status (or “Coming Soon”) is to allow a short period of time in order to prepare a property for showings, after which time the listing will become fully Active and available for showings. During the “Coming Soon” period the seller and listing broker may not promote, market or advertise the property in any manner other than as provided in this Rule 302.3. All other MLS Rules shall apply to Coming Soon listings, as appropriate, and violations of these “Coming Soon” Rules shall be subject to the Rules Enforcement provisions of Section 9, herein.”

In order to permit a listing to be designated as “Coming Soon”, the owner must provide specific, written instructions that they wish to have the property identified as “Coming Soon.” A “Coming Soon” property is entitled to this status for a maximum of 14 days. After 14 days, its status will automatically change to “Active.” If, at that time, the property is not ready to be placed Active, then the agent can place the property “Temporarily Off The Market.”

While the status of the property is “Coming Soon,” it will be displayed on the MLS system and on IDX/VOX websites/mobile apps. It will not be syndicated to such websites as Realtor.com, RPR, the Zillow Group, Homes.com, ListHub, etc.

“Coming Soon” properties will only be allowed on the following websites and there must be a notice stating that the property is “Coming Soon,” along with the date that the property will come on the market:

• The listing broker’s website, including client portals;

• On other broker websites via IDX/VOW, including client portals;

• Social media posts; and

• Any website of the MLS.

Additionally, the property may be marketed as follows:

• Placing of a sign on the property stating “Coming Soon;”

• Printed flyer stating “Coming Soon” with the date it will come on the market; and/or

• By e-mail to the listing broker’s current clients and customers, stating that it is “Coming Soon” with the date it will come on the market.

What is important to understand is that while the status of a property is “Coming Soon,” it cannot be shown to anyone.

Conclusion

Cold calling, Clear Cooperation, and “Coming Soon” are three very important rules to understand. Take the time to learn them while you are working from home. While none of us own a crystal ball that we can look into to predict the future, we do know that some things will inevitably come to pass. Someday soon we will be back at work. We will be listing and selling homes and well need to know these rules. And, hopefully, in the very near future, we will be breathing in the fresh air, gathering and laughing with friends and colleagues (at a distance closer than six feet), and we will all look back on this and be all the wiser for it. Stay safe.

Brian Levine
Brian S. Levine, Esq. is In-House Counsel/Director of Legal Services & Professional Standards Administrator for the Hudson Gateway Association of Realtors.