Washington’s law restricting private home listings took effect June 11—and both sides of the state’s high-profile fight over listing policy have very different takes on the new rules.
Senate Bill 6091, signed in March, requires that any residential property publicly marketed in Washington be concurrently marketed to the general public and all real estate brokers.
Compass, which is locked in a back-and-forth lawsuit with Northwest MLS (NWMLS) over its private listing strategy, says the law affirms its approach.
“The new Washington law preserves homeowner choice,” a Compass spokesperson said in a statement to RISMedia. “It affirms that homeowners in Washington can market their homes before listing them on the MLS or public portals.
“Compass Private Exclusives and Compass Coming Soons are fully compliant with the new law,” they continued. “By contrast, NWMLS rules violate state law requirements and are among the most restrictive in the country, limiting the marketing options available to homeowners that are widely available in other states.”
NWMLS—which covers most of the state and prohibits pre-marketing of listings—has taken the opposite position, arguing in court filings that Compass’s Private Exclusives are illegal based on the plain text of the law.
In counterclaims filed in April, the MLS alleged Compass’s “3-Phased Marketing Program” violates Washington’s Consumer Protection Act and asserted that the program “and related practices will violate state law.” Compass has since asked the court to dismiss those counterclaims.
In a panel discussion hosted by NWMLS on June 11, as the law officially took effect, Washington Realtors® Policy Director Bill Clarke noted that the definitions are purposefully vague, even as the intent is clear.
“The standard of conduct is, if you’re going to privately market it, it’s got to be publicly available, too,” he said. “How you choose to do that—that’s still your guys’ expertise and your guys’ business. And you know, that’s a feature of the law. It’s not a bug.”
Access over advertising
Justin Haag, NWMLS CEO, told RISMedia that “NWMLS has proudly championed market transparency for decades, with members sharing all listings with all brokers and all consumers. Senate Bill 6091 simply codifies that standard—ensuring that when a home is marketed for sale, it is available to all buyers and all brokers.
“NWMLS members already comply with the new law, as our existing rules reflect a longstanding commitment to full transparency and equal access to listings,” he continued. “NWMLS rules and the new law ensure an open, fair and comprehensive marketplace for residential properties that promotes competition and fair housing.”
What happens if Compass continues to hold listings on its private platforms in the state is not clear. The company has previously argued that those listings are available to anyone who requests to view them, and the new law does not define what “publicly marketed” means.
Asked about measures taken to prepare NWMLS members for the law’s implementation, Haag told RISMedia that “NWMLS has focused on forms updates and member education. However, the new law is not a change for NWMLS members, as members already comply with the law through longstanding NWMLS rules.”
To kick off the panel, Haag acknowledged the “growing debate” across the industry over private listings, and argued it isn’t really about marketing or business models.
“I think it’s a debate about whether housing opportunities belong to everyone or just the select few,” he said, adding that brokers also need access to information without “gatekeeping” if there is to be fair competition among real estate professionals.
Not mentioning Compass by name and largely steering away from how private listing supporters have sought to frame the question, the panel instead honed in on how public marketing ensures opportunities for buyers and prevents discrimination.
Adria Buchanan, executive director of the Fair Housing Center of Washington, argued that limited marketing can constitute a form of redlining—referring to the practice of denying housing services to certain regions or groups, with discriminatory impacts.
“People regardless of their network, regardless of where they live, should be able to know about the availability of housing opportunity,” she said. “Because it is done through these different online platforms, you can do it at scale.”
Buchanan noted that the intent to discriminate does not necessarily mean a private network or private marketing effort won’t leave some folks out—often in ways that are hard to predict.
“You’re setting a boundary, and anyone who’s outside of that boundary doesn’t have access in the same way that those folks who are inside that boundary…do,” she added.
Clarke also said that the law had been mischaracterized as a ban on private listings, saying that his office had received calls from people around the country asking about why Washington was “prohibiting” private marketing.
“It doesn’t prohibit private marketing, right? It allows private marketing to occur. Once that occurs, at the same time, you have to engage in public marketing,” he said.
Other states, including Wisconsin and Connecticut, have passed laws that allow private marketing without any simultaneous public marketing, but require signed disclosure forms that inform sellers this choice could have negative impacts on their home sale (something Compass and others dispute).
Barry Long, a Washington agent on the panel, used the example of accessibility features. A wheelchair user himself, Long said that a prospective buyer who needed specific features—ramps, grab bars, wide hallways—might entirely miss out on a home that is marketed on a private network.
But, he added, the issue runs both ways. Marketing a house only to folks with disabilities risks preventing others who need those features from having a chance to purchase the home—families who have a wheelchair-using friend who they want to be able to visit, for instance.
“It’s not our job to look to find the buyer,” Long said. “It’s our job to expose that to everybody because we don’t know who the buyer is going to be.”
All the panelists also noted that the bill had overwhelming bipartisan support, passing nearly unanimously (with two abstentions across a committee vote and full floor vote). Haag said that while lawmakers don’t really engage on technical issues like real estate marketing practices, the ideas of equal access and visibility were much more intuitive.
“Public marketing is a good thing, and they kind of get that,” Clarke said.
At the same time, the bill did go through some changes, including specific exceptions that allow sellers to not show homes even during public marketing.
Notably, the lawsuit between NWMLS and Compass does not cite violations of the new law (as of right now), instead focusing on state and federal antitrust and consumer protection laws statutes.
Haag, a former lawyer, closed out the panel by noting that there are a handful of other lawsuits around the country focused on private listings.
“It feels like the only group that’s winning is the lawyers, and I’m questioning my decision to get out of private practice,” he joked.
“Negative insights”
OB Jacobi, president of Seattle-based Windermere Real Estate (a supporter of the bill), told RISMedia that “For decades, the U.S. housing market has been built on a simple but powerful principle: broad access to information creates a more competitive, trustworthy and fair marketplace for consumers. Buyers deserve confidence that they’re seeing the full range of available homes, and sellers deserve the opportunity to reach the widest possible audience.
“Washington State’s new law reinforces those values by protecting transparency while still preserving legitimate privacy and safety protections for homeowners,” Jacobi continued. “With the largest market share in Washington, private listing networks could have worked to Windermere’s advantage. We supported the legislation anyway because we firmly believe that preserving an open marketplace matters more than protecting market position or company profits.”
Following the law going into effect on June 11, Windermere also released a new “addendum” form for marketing transparency, to be optionally used alongside standard residential purchase and sale agreements. The boilerplate form (viewable here) allows the seller to affirm the property has not been previously marketed, privately or publicly, prior to its current listing in the MLS, and that there has not been any previous price reductions on the property.
According to Windermere, the form is designed to help ensure buyers “are aware that public information related to days on market and price changes may be missing or even inaccurate, and to provide them with a mechanism to gauge whether relevant information is being withheld.”
One element of NWMLS’s counter-lawsuit against Compass is that properties that were previously marketed privately have incorrect days on market stats once they are added to NWMLS, reducing the platform’s accuracy and effectively deceiving consumers and agents who rely on that information.
In Windermere’s statement on the form, Jacobi likened the disclosure to a vehicle history report as supplied by companies like Carfax.
Jesse Williams contributed to this story.
