BARRISTER'S BRIEFING: ‘Who You Gonna Call?’ A Facilitator (Not the Ghostbusters)!

Brian Levine | May 2020

Brian Levine, Esq., HGAR In-House Counsel/Director of Legal Services & Professional Standards Administrator

As we all know, the new OneKey MLS roll out is taking place. Clear Cooperation is now a requirement and you can no longer market a property to the public without putting it on the MLS. The “Coming Soon” status will soon roll out as well. So, while you’re conducting business from home, it’s important to familiarize yourself with these new provisions of our MLS. That’s why in this month’s column, I’m going to focus on the use of a Rules Enforcement Facilitator.

What’s a Rules Enforcement Facilitator?

Rules Enforcement Facilitators (Facilitators) have been commonly used by Long Island Realtors for quite some time; however, for us, the use of these intermediaries will be new. So first, we need to know who is a Facilitator? A Facilitator is a OneKey MLS Participant who is appointed by the MLS Board of Managers to assist our members in certain situations. A list of these Facilitators, approximately 30 of them in total, is posted on the HGAR website in the Document Library. You can find this list under the tab “OneKey MLS Reference,” under the title “Rules Enforcement Facilitators.” It can also be found in Matrix under “External Links.” If a particular issue arises where the use of a Facilitator is permitted, any one of these Facilitators can be selected to assist. There are Facilitators from various brokerages and regions and a Participant is free to choose a Facilitator that suits them best or with whom they are most familiar.

What Do Facilitators Do?

If you, as a member, have an issue that falls under the purview and authority of a Facilitator, you can use their assistance in obtaining results, However, there are a few steps that you must take before you contact them. (1) First, as an agent, you must attempt to resolve the issue with the other agent and/or the other agent’s broker of record/owner/manager. (2) If these efforts are ineffective, you must involve your broker of record/owner/manager to assist in obtaining a response from the agent; and if not the agent, the agent’s broker of record/owner/manager. (3) Finally, if a response is not forthcoming after all these efforts, then and only then, can a Facilitator be contacted. But, what is most important is that ONLY A PARTICIPANT (i.e. broker of record/owner/manager) can contact a Facilitator. The Participant can act on behalf of the broker’s agents.

What Acts Involve a Facilitator?

Facilitators can be engaged for only a few specific issues; however, these issues are some of the most common problems that face agents. They are:

Showing Requests

• A Cooperating Broker cannot contact the Listing Broker to make an appointment to show the property or;

• The Listing Broker is responding in an unreasonably slow matter regarding showing requests.

Presentation of Offers

• A Cooperating Broker cannot contact the Listing Broker to make an offer or;

• The Listing Broker is responding in an unreasonably slow matter regarding an offer made.

Confirmation of Presentation of Offers/Offer Acknowledgment Form

• A signed Offer Acknowledgment Form or a signed Sworn Declaration Statement is not returned to the Cooperating Broker within the specified period of time.

Listing Broker Fails to Provide Written Instructions/Restrictions

• After request from a Cooperating Broker, a Listing Broker fails to timely provide written instructions or information relating to showings or access restrictions on a listed property.

Powers of the Facilitator

In addition to being able to intervene on behalf of an aggrieved Participant to assist in resolving an issue, a Facilitator has the power to impose automatic fines on those that the Facilitator deems to have violated the MLS Rules. The fines are as follows:

• $500 fine for a first violation of this type by that Participant’s office;

• $750 fine for a second violation of this type by the Participant’s office;

• $1,000 fine for the third and any further violations of this type by that Participant’s office.

It is important to note that violations are recorded against a Participant’s office, not the individual agents, and this escalating violation count against a Participant’s office continues for as long as a Participant remains with the MLS. Additionally, the accrual of multiple violations by a Participant’s office could also expose the Participant to additional discipline.

Conclusion

The use of Rules Enforcement Facilitators is a great benefit to our members. It works to assist members in trying to move all transactions forward in a professional manner. It levels the playing field to benefit all Realtors. At its core, it addresses one of the most common problems that agents face: trying to show a property or trying to make an offer (and proof of same). These issues have always plagued our industry.

With the advent of the neutral Facilitator, these problems will demand immediate redress and the pressure to comply is persuasive, as serious fines could accrue. As a result, I feel that all members will communicate more quickly and professionally. This, in turn, will make our industry more transparent and efficient and this will confer an enormous benefit on the clients we serve.

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.