Answer provided by Neil B. Garfinkel REBNY Broker Counsel Partner-in-charge of real estate and banking practices at Abrams Garfinkel Margolis Bergson, LLP
“Off-market” commonly indicates that the property is not listed for sale or has not been listed on a multiple listing service. REBNY and most MLS’s expressly forbid the promotion of exclusive listings as “off-market”, “pocket” or “whisper” listings. If a REBNY or MLS participant is suspected of having engaged in a pattern or practice of encouraging owners to withhold exclusive listings from the RLS/MLS or promoting off-market properties to the brokerage community, a complaint by another participant can be filed against them.
An exception to this rule is where the listing is open or not subject to an exclusive agreement. However, there are great risks in open listings. The owner has no obligation to either compensate or protect brokers advertising or marketing the listing. Importantly, the UCBA Article I Section 4 prohibits open listings from being submitted to the RLS or any MLS because they both require exclusive written agreements.
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