Neil B. Garfinkel
REBNY Broker Counsel•
March 8, 2023
I am an RLS Participant and understand that the REBNY Universal Co-Brokerage Agreement (the “UCBA”) prohibits the use of the term “Off-Market” to describe an Exclusive Listing. Could I use “Off-Market” to describe an Exclusive Listing where the Owner has opted NOT to list the property on the RLS?
A new section in the UCBA (Article I, Section 5(D)), became effective as of January 1, 2023 and strictly prohibits the use of “Off-Market” to describe or promote an Exclusive Listing. The use of “Off-Market” to describe or promote an Exclusive Listing is misleading to consumers because, by its plain meaning, “Off-Market” means that the property is off the market and therefore, not for sale. Nonetheless, real estate licensees often use “Off-Market” in describing exclusive properties that are, in fact, for sale. This is misleading and the UCBA provision is designed to stop this practice.
Exclusive listings that are excluded from the RLS by submission of an opt-out form (signed by the Owner acknowledging that such limited exposure may affect the pricing and length of time to sell or lease the exclusive property) are similarly prohibited from being described or advertised as “Off-Market” (See UCBA Article I, Section 5(A) and Exhibit B). There are no exceptions to the use of the term “Off-Market” under the UCBA and RLS Participants could be fined for violating this rule.
UCBA Article I, Section 5(D)(i) provides that where an RLS Participant describes, advertises, and/or promotes an Open Listing as “Off-Market,” the RLS Staff may request a signed and dated acknowledgement attesting that such listing is an Open Listing. Notwithstanding this section, it is a best practice to not use the term “Off-Market” in describing or promoting a property for sale in any type of listing – exclusive, open, ours alone, etc. - so as to avoid consumer confusion and controversies with other members.