…or... “you can have our data when you pry it from our cold, dead hands!
In what may result in a watershed ruling affecting real estate historical listing information, the Competition Bureau Tribunal will be conducting hearings in both Toronto and Ottawa over the next few weeks to determine how much listing data can be provided by online real estate marketing companies. This matter has been winding its way through various regulatory and legal processes for some 4 years now, including the Supreme Court-which refused to hear the matter.
What does the Bureau want?
The Bureau wants MLS® listing and sold data to be more widely available to consumers and 3rd party online marketers like Trulia and Zillow in the US. This would allow more information for both buyers and sellers and a new range of online services. Currently, Realtors control this data and provide it to their customers or prospects.
The Bureau argues that TREB (and by extension MLS® as a whole) uses its monopoly over access to this listing data to prevent new services and business models and that consumers have a right to access this data without having to go through an MLS® REALTOR® member, as is the case in some other countries.
NB. The issue fundamentally relates to historical “sold” data and listings, as active listings are already widely distributed to the online 3rd party real estate community via the MLS® Distributed Data Facility (DDF).
What is organized real estate’s position?
Organized real estate feels very strongly that historical listing data is proprietary to MLS® members as they have assembled/created and paid for the whole system that collects, aggregates, stores and distributes the listing data. Listing data goes far beyond simple listing and selling prices and includes photos, videos, room sizes, special features etc.
This comprehensive data set is what is necessary to form any kind of baseline for pricing a property to be listed in future. Simply having the selling price of a property without all the ancillary information included in a typical MLS® listing is fairly meaningless and is already available to the public via MPAC (up to 24 properties in Ontario) or the local land registry office.(for a small fee)
Organized real estate also argues that even private sellers (for-sale-by-owner or FSBO sellers) have access to comparable sold data, as the major FSBO sales organizations are generally affiliated with a real estate brokerage that can provide that information. FSBO sellers can also have their properties posted on MLS® subsequent to a previous agreement between the Bureau and the Canadian Real Estate Association (CREA).
We believe the bottom line on the whole exercise is “…let’s not try to fix what’s not broken”.
Which side would the public support?
We suspect most members of the public with only a cursory knowledge of the issue might choose to support the Bureau and hope that the Tribunal decision forces the MLS® membership to make sold listing data widely available without REALTOR® involvement or engagement. However, it is a complex matter and the results of such a change may have some unintended consequences that may not serve the consumer well at all. Our current MLS® system is the envy of many around the world and provides a strong centralized national and regional platform for the distribution of listings for sellers and easy access to those active listings for buyers. (without commercial messages or advertising on www.realtor.ca ) Furthermore comparable sold data is readily available for both sellers and buyers from a large and diverse REALTOR® population who compete via a variety of business models for consumer business. We believe the consumer is well served by the current system.
Be careful what you wish for...
While there may be some positive aspects of wider access to MLS® sold listing information for consumers, if such a change ultimately resulted in a significant change to the MLS® landscape both consumers and real estate professionals would be poorly served. We hope the Tribunal considers all possible consequences in rendering its decision.
Our belief is that by and large professional real estate is fairly intractable on this issue, so who can say what may transpire if the Tribunal rules against TREB?
Stay tuned for news coming out of Ottawa on this issue, as it remains to be seen whether this will simply be another skirmish between the Competition Bureau and organized real estate or if in fact it will be a decisive battle.
NB: we offer this note as our personal opinion only as experienced real estate brokers and not as representatives of any Association, Board or entity, as we do not have detailed knowledge of the legal complexities nor do we represent organized real estate in any way, concerning this matter.
Gord McCormick, Broker of Record
Dawn Davey, Broker
Oasis Realty Brokerage