At the Canadian Real Estate Association’s annual general meeting in Ottawa, delegates from boards and associations across the country voted heavily in favour of adding a new “Duty of Cooperation” to the Realtor Code, which is accompanied by a Realtor Cooperation Policy. 

The policy will require agents to list properties on MLS within three days of marketing them publicly, making it an ethical obligation. 

CREA defines public marketing as any type of marketing of a listing to the public or to anyone not directly affiliated with the brokers and licensees of that brokerage. One-to-one marketing and marketing within the listing brokerage will still be permitted. Over 82 per cent of voting delegates supported the change, which comes into force on January 3, 2024.

Some realtors have raised concerns about how the policy will impact their businesses and the privacy of their clients. Jill Oudil, CREA’s immediate past chair, addressed some of these concerns in a recent phone interview with Real Estate Magazine. Oudil stated that the new policy was developed in response to growing concerns among local boards about the rising misuse of marketing tactics that were keeping listings off MLS.

This interview has been edited for length and clarity.

Real Estate Magazine: Let’s start with the journey from 2021 to the vote on the amendment to the Realtor Code at the AGM. What concerns did you hear from boards and associations, and how did CREA respond?

Jill Oudil: The journey began when various boards and associations approached us with different issues they were facing in different parts of Canada. They expressed concerns about limited marketing tactics and hidden listings from clients, among other things, and requested that we find a way to help maintain professionalism, work for the customer and the consumer, and serve our clients. We were already aware of similar issues in the United States, where NAR had implemented a clear cooperation policy a few years earlier for similar reasons. We looked into what the NAR had done and took inspiration from their policy as we sought to address the concerns brought to us by the boards and associations here in Canada.

Real Estate Magazine: The policy that will be implemented next year— how is it different from the policy that was introduced last fall?

Jill Oudil:  We engaged with boards and associations across the country to understand the biggest concerns and what didn’t quite work. After consultation and engagement with the membership, we altered the policy to allow one-to-one marketing of exclusive listings to realtors from all brokerages instead of just within the same office. Additionally, the policy now includes a disclosure about the benefits of using MLS if you decide not to list on it. These were the main shifts in the last version of the policy, which was developed through a collaborative process with our stakeholders.

Real Estate Magazine: Who made up the working group?

Jill Oudil: Many of the original working group were CEOs from across the country. They’re involved with all the issues in their boards and very well aware of the situation. Member surveys and regional consultations were conducted to gather feedback from boards of directors and associations, who are all realtors. We commissioned a white paper. Open forums, an EA seminar, and a recent session in February were also held with a wide mix of leaders, from brokers to realtors to presidents. The group did extensive work to narrow down the top options to ensure the best way forward for the industry and consumers.

Real Estate Magazine: Apart from the complaints CREA received from some boards, what data was there that showed coming soon and exclusive listing marketing tactics were an issue?

Jill Oudil:  I don’t know if I would use the word complaints, but brought to our attention, perhaps. The increase in the availability of social media highlighted an unfair advantage that some clients were receiving, which prompted us to ensure fair competition in the industry. It is essential that all buyers have equal opportunities to access all listings available for sale and that exclusive listings are used solely for their intended purpose. While there may be rare circumstances where you may not want to make your listing public, such as confidential listings, it’s crucial to maintain transparency and fairness in the industry. Boards and associations brought this issue to our attention since they’re responsible for addressing complaints and enforcing ethical standards among realtors. Through extensive consultation and engagement with our members, we worked to develop a policy that upholds high ethical standards and provides fair competition for all parties involved.

Real Estate Magazine: It did seem that there was an increase in exclusive listings during the pandemic, presumably due to homeowners’ concerns about having many people visiting their properties. I’m curious about whether this policy is solving a problem that may not be as prevalent as it was during the height of the pandemic. Additionally, I’m interested in hearing your thoughts on how the industry may respond to similar situations in the future and whether different strategies can be employed.

Jill Oudil:  First of all, I hope we never find ourselves in a similar situation.

Just to add to that, if there was a perception that too many people would be going through a home, that’s when a homeowner would need the assistance of a realtor to ensure that they were protected in a way that made them comfortable. As a working realtor at the time, I was actually quite busy. In fact, the more people that could be brought through a home in a short amount of time, the better it was for using MLS and for realtors to work with qualified buyers from their client’s homes. Some clients needed more privacy, while others didn’t care, but I always made sure to protect my clients by ensuring everyone was outside the house at that time. During COVID, there has been a shift in what is necessary, but whatever made the client comfortable was what we did, whether it was ensuring everyone wore a mask and sanitized their hands or airing out the house. I wouldn’t say that people had fewer people coming through their homes necessarily, but realtors could make a bigger effort to ensure that only qualified buyers entered the home instead of just holding open houses for anyone to come in and snoop around for decorating ideas.

Real Estate Magazine: Some boards and associations already have similar policies in place. Why did this end up being a CREA policy as opposed to a policy implemented by boards and associations?

Jill Oudil: Our policies will be implemented by boards and associations, but they can make them stricter than the minimum standards. For example, Quebec has rules similar to ours, and in Newfoundland, an MLS number is required even to put a “for sale” sign out. Our goal is to set the minimum standard for the protection of consumers and to show regulators that we are doing our best to protect them. Unless there is a special circumstance, consumers should be able to see all properties for sale. As an organization, it is our duty to identify major issues affecting our profession, realtor reputation, and clients while maintaining high ethics.

Real Estate Magazine: How will CREA support boards in the implementation and policing of the Realtor Cooperation Policy?

Jill Oudil: In organized real estate, boards and associations are obligated to enforce the realtor code to keep ethics high and prioritize consumer needs. While each area may have its own specific practices for enforcing the code, a lot of it comes from being notified of violations. The new policy doesn’t change anything for them; it simply adds another potential violation to the list that they already regularly enforce.

Real Estate Magazine: Do you have a general idea of how many of the 75 boards voted in favour of the change?

Jill Oudil: I don’t have the exact number of boards that voted in favour, just the percentage. This information isn’t typically provided, but I can inquire about it. I believe that the percentage of votes in favour, nearly 83 per cent, is more meaningful because it represents the percentage of realtors covered by those boards and associations. For example, TRREB equates to 30 to 40 per cent of that vote. 

Real Estate Magazine:  Were you surprised by how much support the amendment received?

Jill Oudil: I was hoping for a high level of support, so I wouldn’t say I was surprised. I knew that, as a whole, the amendment had a lot of support. It shows that we’re all on the same page, which will help enforcement and everyone work together. It’s great to see that realtors, boards and associations are supporting us and our clients in doing our job, which is crucial. Although there are people who may have questions or are against it, I’m thankful for the overwhelming support we received

Real Estate Magazine: How would you respond to realtors who claim that the policy does not accurately represent the opinions and feelings of the real estate industry?

Jill Oudil: I think there’s a very small percentage who are upset with the policy. This policy is meant to ensure fairness for our clients and consumers, which is critical to our industry. By having access to all listings, buyers and sellers are better served, and realtors are able to provide accurate assessments of property values. While it may not be perfect for everyone, the benefits are substantial. It’s natural for the minority to be vocal on social media, but there are many realtors who are content with the policy and not engaging in social media discussions.

Real Estate Magazine: Did CREA consider creating separate rules for “coming soon” and “exclusive” listings? Some have flagged that these are different issues. For example, one realtor described working with a client whose home requires a lot of work. In that case, a “coming soon” listing may work better as it generates interest and allows buyers to make informed decisions about the home’s state.

Jill Oudil: I can tell you that the working group thoroughly explored every possible scenario, including the one you mentioned about separate rules for coming soon and exclusive listings. There was no lack of digging into every likely scenario. And I would say that the one that you just mentioned certainly could happen. While it’s true that coming soon can drum up interest for a home that needs work, putting it on the market weeks earlier may not be as effective because active buyers may have already found homes. The wish of all involved boards and associations was to have one set of rules for both types of listings, as it’s the cleanest, easiest, and works best for everyone.

Real Estate Magazine: A few have flagged that this new policy limits consumer choice and could be considered anti-competitive. 

Jill Oudil: We see that this helps all consumers have the same chance to see listings, which is important. Exclusives are still allowed, and that’s the message we need to make sure people understand. The true use of an exclusive is when you don’t want public marketing because you need to keep it private for some reason, which is a very unusual circumstance. It’s in your client’s best interest to ensure that all clients see the listing, as that will get your client, the seller, the best terms and certainly the best price. Having the data for both listing properties as well as for your buyers is important to assist them in assessing a property properly. The cooperative real estate system is what makes the highest amount of information available for all clients’ benefit.

Real Estate Magazine: Did CREA consider potential loopholes that might be exploited? One example given was terminating an exclusive listing every three days to avoid having to put it on MLS.

Jill Oudil: I think there will be a learning curve. In the U.S., realtors have to have it on MLS within one day of public marketing. I hope realtors across the country will embrace the reason for the policy in doing what’s right for the cooperative system and keeping MLS strong.

Real Estate Magazine: Another realtor flagged that the Realtor Cooperation Policy could create opportunities for unlicensed companies to fill the void left by licensed realtors unable to trade exclusive properties in the way they did previously. Was the possibility considered, and what might the impacts on the industry and consumers be?  

Jill Oudil: There have been a lot of discussions about different possibilities throughout this process. However, I believe that, ultimately, realtors who are dedicated to serving their clients and providing them with the best opportunities will need a system that includes all the listings and provides them with accurate pricing data for homes. This is why we have the MLS system. I share my data with my colleagues to ensure that we all have access to the same information and can accurately price homes for our clients. It would be difficult to leave a system that offers all these benefits to our clients. While we can’t predict the future, I know the value of the MLS system, and I would never want to be without it, as it’s essential for me to serve my clients effectively as a realtor.

Real Estate Magazine:  If significant issues arise or unintended consequences arise, is the board open to amendments to the Realtor Cooperation Policy?

Jill Oudil: We’ll have to see what happens. That is not the intention. So it would have to be something big enough that we would need to go back to the policy again. But at this time, the country has spoken, and this is the policy that we are adopting.

Real Estate Magazine:  As a realtor, can you empathize or understand some of the concerns others have raised?

Jill Oudil: I’ve been a realtor for 31 years. I’ve never had a situation where it didn’t benefit my client to list it on MLS. Now, I’m not saying that that situation can’t happen, but I think the true need for that situation is extraordinarily rare that you would want to hide your property for sale from other realtors that have clients that wanna sell it. I know the benefit of MLS. So as a realtor, I would always want to use the MLS system, and I would want to put back into that system and share with my fellow realtors all the information that I have access to, that I have collected so that they can do their job for the clients as well.

Real Estate Magazine: Anything else you’d like to add?

Jill Oudil: I’m excited that we had such immense support for the policy. I’m very grateful that it was so high, and there’s no doubt that this is the right policy going forward.

Jordana Springgay

Jordana is the editor of Real Estate Magazine. You can reach her by email.