I have received several questions from real estate agents asking if advertising another agent’s listing on Facebook is proper and legal. The answer is, it depends. Leave it to a lawyer to give you a non-answer! The answer lies in the statute, the Multiple Listing Service (MLS) and the Internet Data Exchange (IDX).
S.C. Code Ann. §40-57-135(C)(4) (2016 version) stated that, “A licensee may not advertise or offer to conduct a real estate transaction involving real estate owned in whole or in part by another person without first obtaining a written agency agreement.” However, the Code also said, “Brokers-in-charge who are members of a multiple listing service must be allowed to make their company listings available for any cooperative marketing or advertising program, subject to the rules and regulations of the multiple listing service and with the consent of the owner. Consent may be contained and obtained from the owner through the listing agreement.”
The MLS and IDX systems allow real estate companies to push listing information to multiple websites without having to reenter the information multiple times. Under this system, a real estate agent associates with a real estate agency under the supervision of a Broker-in-Charge. If the agency is a member of the MLS, the agency posts its listings on the MLS so that other MLS members can view the listings. In order to be a member of the MLS, the agency is typically required to sign a MLS data feed policy in which the agency consents to the MLS pushing their listing information to other real estate websites such as Zillow.com, Reatlor.com and Trulia.com. The listings can be pushed by IDX to nearly a hundred websites for the purpose of assisting the agent in getting maximum exposure for the client’s listing.
In addition to these data systems feeding the listing information to third party sites, the system may also feed the listing information to the websites of other MLS members. MLS/IDX agreements signed by members of the MLS typically require that when displaying an IDX listing, the member agrees they shall display the name of the listing company. Therefore, if a licensee’s agency is a member of the MLS, the agency by virtue of joining the MLS and signing the Agreement has consented to the pushing and sharing of information to third party websites, including competitor websites who are members of that MLS.
As it relates to whether or not it is proper to do so on social media, it depends on whether or not the listing was pushed to the agent’s social media by the MLS/IDX. If it was pushed to social media by MLS/IDX, then the agents and sellers have agreed to sharing on social media by virtue of being a member of the MLS and by the seller signing a Listing Agreement that allowed the property to be placed on the MLS. However, if the Facebook post was created by the agent copying and pasting and was not part of the MLS/IDX feed, then the Facebook post is probably in violation of the statute. In either case, the Facebook post should prominently note the listing agent and company in a conspicuous manner.
As an aside, the new statute does not contain the MLS cooperative marketing language. It appears to have been omitted in error. I am not aware of any ruling by the Real Estate Commission addressing this oversight in the statute.
The bottom line is you should never capture another agent’s listing and post it on Facebook. If your MLS and agency has an agreement that the IDX feed posts certain properties on social media, make sure that the other agent’s name and agency are prominently shown.