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The Multiple Listing Service (MLS) is an online platform that compiles property listings in a given market. Because each MLS has its own policies, it is important that licensees understand their local MLS rules and procedures. 

An agent would like to send letters to prospective buyers to gauge interest in a property before listing the property on the MLS. Is this allowed?

There are a couple of considerations with this scenario: Wisconsin advertising laws for real estate licensees and MLS policies.

A firm cannot advertise a property unless the firm has it listed or has the permission of the listing firm. If this agent sends letters to prospective buyers and the property is not listed, that is likely a violation of the advertising rule in Wis. Stat. § 452.136.

If the property is listed, the agent would need to comply with MLS rules, including the MLS Clear Cooperation Policy (CCP).

Once the property is marketed to the public, if it is not already in the MLS, it will have to be entered in one business day. A sign in the yard, social media posts, or communication with cooperating agents or brokers from different firms about listed property all would trigger the CCP.

However, direct promotion of the listing between the brokers and agents affiliated with the listing firm, and one-to-one promotion between these licensees and their clients, is not considered public advertising. This method allows the listing firm to market a property among the brokers and agents affiliated with the listing firm. Common examples include divorce situations and celebrity clients. If office-exclusive listings are displayed or advertised to the general public, however, those listings must also be submitted to the MLS for cooperation.

The listing is in delayed status. A buyer submitted an offer that includes language allowing the buyer to view the property within 48 hours of acceptance. Can the seller allow the buyer to view the property during the delayed status?

The listing agent should consult the local MLS. Generally, during delayed status, no one may view the property. Whether the buyer, with an accepted offer, is an exception to the rule is a matter for review of the MLS rule. Each MLS has its own policies, so it is important to ask the relevant MLS directly.

The seller is willing to sign a listing contract if the agent brings a buyer. Would this be a one-party listing? How would a one-party listing contract be entered into the MLS?

If the listing is to be a one-party listing limited to particular specified buyers, the title of the listing contract should be modified to indicate it is a “Limited” or “One-party” Exclusive Right to Sell listing contract. Language should be added to indicate the listing only applies to the purchase of the property by the named buyers and that the naming of the buyers establishes buyer protection. The term of a one-party listing contract should be filled in with a duration that extends through the day of the showing and any negotiating time. Make sure the term of the contract is long enough to protect the agent and the firm. Other modifications can be made as needed. 

The firm will want to contact its MLS regarding how to enter one-party listings.

Can two different firms co-list a property in Wisconsin?

A co-listing, with seller consent, is permissible. The listing contract can be amended to be a non-exclusive right to sell. Each firm should have a clear understanding of what is expected of each, including commission and areas of liability. It is prudent for the firms to plan out the details for the transaction — for example, the MLS, lockboxes, who will hold earnest money, who will order title, home warranties, document presentation and document drafting. Although permissible, the firms should ensure complete understanding of each firm’s responsibilities and obligations.

A co-listing may be prepared with one contract signed by the seller and both firms or with each firm having its own listing contract. An agreement between firms regarding their respective responsibilities should also be created. This agreement establishes the respective duties, obligations, responsibilities and costs between the two firms and indicates how commission will be divided. It is important to protect, or at least address, the potential of the seller paying double commission if two contracts are used. When providing brokerage services for co-listings, the licensees should address co-listing issues in each listing contract, if two contracts are used. The contract may be modified to meet the needs of the party in the transaction representing the agreements between all the parties. The contract will be the written evidence of the agreement.

Note that some MLSs will not accept certain co-listings. The firm should first check to see whether this would violate the rules of any MLS or listing service the firm intends to use.

A cooperating agent reached out to the listing agent for a showing. The cooperating agent asked for a one-day code since they are not a member of the same MLS. The listing agent refused to give the cooperating agent a one-day code, stating the cooperating agent should pay for the lockbox and MLS membership fee on their own. Can the listing agent deny access for the showing and refuse to give a one-day code?

The listing agent should provide access to the property unless the seller has otherwise instructed in writing, per Wis. Admin. Code § REEB 24.13(2). 

Wis. Admin. Code § REEB 24.13(2) states:

“Access to property for showings. Listing firms shall permit access to listed property for showing purposes, to all buyers and persons assisting or advising buyers, without unreasonable delay, unless the buyer’s or other person’s access is contrary to specific written instructions of the seller.”

If the seller has not instructed the listing agent to restrict access to those who are not a member of the listing agent’s MLS and the listing agent denies access to cooperating agents for the showing, the listing agent may be placing the listing agent’s interest ahead of the seller’s interest. Doing so would be a violation of Wis. Stat. § 452.133.

Wis. Stat. § 452.133(2) provides:

“A firm providing brokerage services to a client owes the client the duties that the firm owes to a party under sub. (1) and all of the following additional duties:
(a) The duty to loyally represent the client’s interests by doing all of the following:
1. Placing the client’s interests ahead of the interests of the firm.
(c) The duty to fulfill any obligation required by the agency agreement, and any order of the client that is within the scope of the agency agreement, that is not inconsistent with another duty that the firm has under this chapter or any other law.”