BARRISTER'S BRIEFING: I’m #1, You’re #1, Everyone’s #1: Using Caution in Posting Your Statistics

Brian Levine | January 18, 2023

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

Yep, it’s that time of year again. The 2022 year has ended and Realtors can go to OneKey MLS and see the final 2022 real estate activity statistics. It’s also at this time of year that, inevitably, Realtors come out of the woodwork with all sorts of marketing to say, “I’m #1!” Sadly, for me, it’s during this time of the year when I’m inundated with calls and e-mails from Realtors saying so-and-so can’t be number one; I’m number one. Agents get really mad. Complaints are filed. It can get pretty ugly.

So, this article is going to highlight the how-to of researching, marketing, and reviewing your (and other Realtors) statistics to ensure that you are doing it clearly and correctly so you can avoid any problems. This will be short and sweet.

Here are the significant rules that are implicated:

Code of Ethics Article 12: Article 12 states that “Realtors shall be honest and truthful in their real estate communications and shall present a true picture in their advertising, marketing, and other representations….”

OneKey Rules and Procedures #608: “…any print or non-print forms of advertising or other form of public representations based in whole or in part on information supplied by the association or its MLS must clearly demonstrate the period of time over which such claims are based and must include the following, or substantially similar, notice: ‘Based upon information from OneKey MLS, for the period (date) through (date).’”

NY Real Property Law: In general, NY Real Property Law, which governs the actions and licensing of real estate professionals requires that licensees show competence and trustworthiness in their activities. Failure to do so can result in their real estate license being revoked. More specifically, RPL section 441-c(1)(a) states that a real estate license may be revoked for “dishonest or misleading advertising, or [the licensee] has demonstrated untrustworthiness or incompetency to act as a real estate broker or salesman, as the case may be.”

Compliance With These Rules/Laws

So, what should a Realtor do to avoid being found in violation of the above rules, particularly when they want to market themselves as being the top in a specific area? In short, do your homework to ensure that your categories are accurate. In conducting your ranking report searches, you are free to state that you are number one in any category which is accurate. An agent is free to fine tune any category to fit their needs, whether it’s done by streamlining under “status,” “property type,” “price range,” “county,” “city/town,” “post office,” “village,” “school district,” “home style,” or “zip code,” etc. You are free to refine your search by the date range, as well as by the various volume or transaction types (i.e., total transactions, total volume, list side transactions, list side volume, sale side transactions and sale side volume). So long as you are, for example, number one based upon OneKey MLS from the period of Jan. 1, 2021 – Dec. 31, 2021, in total sale side transactions, single-family homes, priced between $600,000 – $700,000, in Nyack, NY, you are free to say that, even though there may be just one transaction; thus making you number one. However, make sure that you put that little asterisk next to your claim and add special, detailed language that indicates your source and criteria.

Additionally, if you make a claim of #1 in a broad region, make sure that you are correct and use specific language for your claim. You might consider double-checking your results by using various search criteria. For example, run your search by town name, and then by zip code, and then by village or school district or post office. Surprisingly, sometimes the results may differ. Make sure that you’re solidly number one. If you’re not, you can rest assured that another Realtor is conducting the exact same search and will be reaching out to you, your manager, or me, or the DOS to complain. They may even contact New York State. There are, in fact, numerous cases where agents have lost their licenses over such claims, as this might be deemed a fraud on the public; a very serious matter in the eyes of the Department of State. This warning goes for all brokers too, as you have a duty to supervise all agents under your license.

A Note on Teams

Currently, OneKey MLS does not have a category for teams and teams are not recognized by New York State. If you are aggregating all transactions under a team leader, that can be dangerous, so be very careful. Ensure that any team members transactions are accrued while a part of the team, as team members do not always join on January 1st and leave on December 31st. Further, NYSAR has indicated that a broker can assign MLS points to whomever they deem responsible for earning those points, similar to the way they would assign MLS points to someone seeking to obtain their broker’s license. However, the gray area is when a team leader does not touch a file/transaction, but is awarded all the MLS points. Once those points are counted up, it could amount to a substantial number and surpass many individual agents. Therefore, as a team leader, be wary of “earning” MLS points from a transaction that you did not touch. Additionally, if you are claiming to be number one based upon accumulated statistics from a team, I would advise you to identify yourself as the team and not as an individual. Otherwise, you can almost assuredly guarantee that someone will complain.

Conclusion

It’s great to be #1. Shout it from the rooftops if you want. But to avoid complaints, make sure that your statistics and criteria are clear. Double-check your numbers. If you’re wrong, you could be facing a lot of headaches and lost time in the new year. Also, you might even consider making that fine print a little large, just so others (and the public) can read it clearly.

If you’re #1 in 2022, congratulations. Interesting story: I heard that Bilbo Baggins became a Realtor and he was #1 in total volume between the prices of 250,000 and 300,000 Mithrils, for single-family hobbit holes, in the Shire, Hamlet of Hobbiton, Kingdom of Middle-Earth for quite some time.

Happy New Year!

Editor’s Note: If the aforementioned Bilbo Baggins data is confusing to some, please consult a friend or colleague who is a “Lord of the Rings” fan.

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