One of the founding principles behind the National Association of Realtors was a simple idea: do unto others. At its core, that principle demands fairness, transparency and cooperation, all grounded in fiduciary responsibility, within a marketplace that only functions properly when participants operate on a level playing field.
These standards underpin the Clear Cooperation Policy. Enacted in 2019, it is one of the most consequential and controversial rules in modern real estate. The policy requires that a listing be entered into the Multiple Listing Service within 24 hours of any public marketing, even something as simple as a yard sign.
While there are limited exceptions for internal office marketing, the core premise is straightforward: listings should be made broadly available to ensure equal access. In California, enforcement through the California Regional Multiple Listing Service carries penalties for non-compliance ranging from $100 to $2,500 per incident.
Clear Cooperation was designed to address the rise of so-called pocket listings, properties that are for sale but not publicly marketed through the MLS. These off-market listings are kept within a limited network, shared only with select buyers, agents or within a specific brokerage.
The exclusivity can be appealing. Buyers feel they are gaining access to something scarce, while the listing broker becomes the gatekeeper of that access. Some firms, most notably Compass, have leaned into this model, positioning exclusivity as a competitive advantage.
However, Clear Cooperation did not emerge in a vacuum. It was a direct response to the growing use of private networks that were beginning to fragment the marketplace. National data has consistently shown that off-market properties tend to underperform compared to those exposed to the full market.
Large-scale analyses of transaction data suggest that off-market homes sell for roughly 1.5% less on average, with the gap widening in higher-priced markets such as San Diego and Los Angeles. In some cases, the difference is more pronounced. A 2025 report in San Francisco found MLS-listed homes selling for significantly more than their off-market counterparts. Across most states, the measurable disadvantage for off-market transactions typically falls between 1% and 3%.
Supporters of private listings argue that controlled marketing creates exclusivity and allows for strategic pre-marketing. Some studies suggest modest price premiums, particularly in the luxury segment. But those findings come with important caveats. Much of the data predates Clear Cooperation, and results are often influenced by selection bias, since unique or high-end properties are more likely to be sold off-market in the first place.
As a result, these outcomes are not consistently replicated across broader datasets. The most common defense remains seller discretion and choice, but that argument raises deeper concerns about fairness, transparency and equal access, principles that sit at the heart of both the MLS system and the Fair Housing Act.
When listings are shared within limited, often homogeneous networks, the outcome is not just exclusivity, it is restricted access. Market analyses have shown that private listings are disproportionately concentrated in higher-opportunity, majority-white neighborhoods, while buyers outside those networks are effectively excluded before they even know a property is available. At that point, the conversation moves beyond industry practice and into civil rights territory.
The concern is not simply about reduced competition or weakened price discovery. It is that these structures allow discrimination to occur without ever being explicit. By limiting visibility, they remove the transparency that enables markets and regulators to identify and challenge unequal treatment. In doing so, they create yet another barrier in a market that is already difficult to access.
This brings us to the current legal tension. Several firms have aggressively expanded private listing networks and office-exclusive strategies, directly testing the boundaries of Clear Cooperation. Opponents of the policy argue that it is anti-competitive, limiting seller choice and forcing listings onto public platforms. Framed as innovation or client service, these strategies raise a more fundamental question: does restricting access benefit the market as a whole, or does it concentrate opportunity among a select few brokers who are supposed to act in their clients’ best interests?
The debate over Clear Cooperation is often framed as a question of seller choice, but that framing is incomplete. The real issue is whether the real estate marketplace should operate with transparency and broad access, or whether inventory should be controlled through private networks that benefit those already inside the circle.
Sellers deserve advice rooted in their best interests, not in a brokerage’s desire to control inventory. Buyers deserve a fair opportunity to compete. And the industry should remember that cooperation, transparency and fairness are not obstacles to professionalism. They are the foundation of it.
Mike Shenkman is a Southern California real estate professional with over two decades of experience in sales, development, affordable housing, and mortgage finance. He teaches real estate development at UC San Diego and the University of San Diego.
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