Mitchell A. Skinner is an attorney based in Minneapolis, Minnesota. He focuses his practice on intellectual property portfolio creation, management, and licensing, and other transactions related to the firm’s practice areas. Skinner provides counsel to creatives, tech companies, multiple listing services, REALTOR® associations, and real estate brokerage firms. Skinner's firm, Larson Skinner PLLC, is outside counsel for the Council of Multiple Listing Services and the Real Estate Standards Organization.
ListHub/Zillow Divorce Stimulates Discussion
With the changes in the online listing environment, brokers and MLSs need to examine their syndication strategies.
April 2, 2015
On April 7, 2015, the agreement between national listings syndicator ListHub (a division of Move, Inc., which itself is a subsidiary of News Corp.) and Zillow Group—the operator of websites and mobile apps with Zillow, Trulia, Hotpads, and other brands—will expire. ListHub will stop sending listings it receives from MLSs and brokers to Zillow Group, and those listings will not appear on Zillow Group sites and apps unless they are transmitted by other means. REALTORS® should understand this change and take steps to ensure that their listings are appearing where they expect them to.
There is no official definition of syndication. The informal one our law firm uses is this: “Distribution in bulk of real estate listing records by or on behalf of the listing broker to portals that will advertise them to consumers on the Internet via websites or mobile apps.” A “portal” is an entity like REALTOR.com, Zillow Group, Homes.com, etc., that displays listing information to consumers as advertising via a website or mobile application.
A decade ago or so, ListHub formed to provide a service to MLSs and their brokers: ListHub would aggregate a single data feed from the MLS of all brokers’ listings; ListHub would negotiate contracts with the portals; and brokers could control which portals received their listings via the ListHub “dashboard.” ListHub became a national “listings syndicator,” and hundreds of MLSs now work with ListHub, which sends brokers’ listings to dozens of portals. ListHub acquired a competing syndication vendor—Point2—last year, making ListHub the only national listings syndicator working with a substantial number of MLSs.
If you are a listing broker, you should know whether your MLS syndicates through ListHub. If it does not, you will not notice any change on April 8. Similarly, if your MLS syndicates through ListHub, but your brokerage has “opted out” of listing syndication or display on Zillow Group sites, the April 8 date will bring no changes for your firm. In short, if your listings are not going to Zillow Group through ListHub, the break between those companies will have no affect on you.
Zillow Group is approaching most MLSs seeking direct agreements with them to receive their brokers’ listings—this is sometimes called “direct syndication” because it cuts the listing syndicator out of the picture. If your MLS syndicates through ListHub, you may be tempted to tell your MLS that it should sign a direct syndication agreement with Zillow Group to prevent any interruption in the display of your listings. But many MLSs have concerns about some of the terms Zillow Group is offering, including demands that portions of brokers’ listing data be available to Zillow Group for use in its valuation and other derivative products even after the listing goes off-market and after the expiration of the syndication agreement—this is called a “perpetual license.” MLSs also face risks and costs in direct syndication that they never faced or planned to face when syndicating through ListHub: technology costs, staffing costs (some of which MLSs may incur anyway), training for subscribers, lawyer fees, etc. The legal risks involve exposure to copyright liability and demands that MLSs indemnify the portals. Thus, deciding whether to provide the listings of a whole MLS to Zillow Group is more difficult than deciding to send your firm’s listings.
If your MLS syndicates through ListHub, it should probably by now have informed you of the status of Zillow Group sites after April 8, and whether they are negotiating a direct deal with Zillow.
You can upload individual listings to appear on Zillow Group websites. For example, using Postlets.com (a Zillow company), you can load your listings to appear in Zillow, Trulia, Hotpads, “and many more” according to the Postlets site. As a broker using this approach, you should ensure that you or someone on your team manages the account to ensure that listing statuses, prices, and other important characteristics are updated promptly. If you allow stale listing data to appear on these sites, your firm may run afoul of the Code of Ethics or state license law.
You can upload listings to Zillow Group websites using an automated process. For example, if your firm has 200 or more listings, it can use an XML data feed to Zillow, according to instructions at the Zillow.com website. This approach would require two things: (1) your brokerage needs to have its own “copy” of your listings, or the ability to pull them from the MLS on a bulk or as-needed basis (via RETS feed, API, or otherwise); (2) you will probably need someone to write code to put the resulting data into the proper XML format described by Zillow and transmit it to Zillow Group. If you automate this process, you should be able to avoid the Code of Ethics and license-law concerns identified above.
If you do not have the technical know-how (which is probably true if you do not know what the references to “XML”, “RETS”, and “API” in the previous paragraph meant), you may be able to work with a contractor who has experience in this area. For example, some companies that build IDX websites for brokers also offer the service of syndicating those brokers’ listings to portals. Check with your IDX provider to find out whether such a service is available. You also need to check the license agreement between your firm and your MLS to be sure that the IDX data feed can be used in this way. Finally, be sure your IDX provider understands that it can send only your listings to the portal(s). Neither your brokerage firm nor your IDX provider may send the listings of other brokerage firms to anyone.
Zillow Group may be willing to do some of this work for you, particularly if your brokerage firm is larger. For example, you may be able to pay your MLS to set up a RETS feed including just your own listings. You could then provide the RETS login credentials to Zillow to use in uploading and maintaining your listings by some automated means.
Finally, if your brokerage has a parent firm or is associated with a franchise that has negotiated a syndication deal with Zillow Group, then your listings will be transmitted via those means. Check with your corporate office or franchise group to find out whether this is an option, and if so, what steps you need to take to implement it, if any.
This article does not represent legal advice. If you need legal advice, get a lawyer. This article discusses certain legal matters in general terms for informational purposes only.
Brian N. Larson is an attorney and business consultant based in Minneapolis, Minnesota. He provides counsel and advice to clients throughout the United States and in Canada, particularly real estate multiple listing services, REALTOR® associations, and real estate brokers. Larson has presented to numerous organizations and has published widely on various topics. Larson's firm, Larson Skinner PLLC, is outside counsel for the Council of Multiple Listing Services and the Real Estate Standards Organization.