I’m not a lawyer. I want to be frank because the current discussion in our industry extends into the realm of law, and it may feel like we need a discussion in every room to address this topic.
But I’ve been in residential real estate for 30 years, and you don’t need a law degree to understand the developments I’m seeing. Common sense is required.
Key points of discussion are: Fiduciary duty requires the agent to follow the lawful instructions of the seller. Therefore, MLS rules that limit sellers’ marketing choices are an illegal overreach, forcing agents to choose between breaking the law and losing their livelihoods.
That sounds convincing, but it’s also incomplete.
Fiduciary responsibility is not a blank check.
Let’s take a look at what fiduciary duty in real estate actually means. Based on the framework most of us learned in our licensing education, the OLDCAR acronym used by the National Association of Realtors includes:
Obedience Loyalty Disclosure Confidentiality Accounting Reasonable accommodation
Note that obedience is done alongside the other five duties.
An agent’s duty of obedience requires him to follow the lawful instructions of his client. But fiduciary duties also require disclosure—the duty to share information that may affect a customer’s ability to obtain the best price and terms—as well as reasonable accommodation—the duty to apply expertise rather than just doing what the customer asks.
For me, this is where the fiduciary duty argument breaks down. It assumes that the seller has acted based on informed and independent judgment and has chosen to withhold the home from maximum market exposure. In my experience, it rarely starts like that.
More often, sellers are presented with sophisticated marketing materials suggesting that days on market “damages perception,” that public price reductions are a “sign of distress,” and that a gradual pre-market strategy (keeping the listing within a private network) is the best path forward.
That consumer desire hasn’t existed throughout my career. It has recently been “manufactured” to instill fear in consumers.
I have been working with buyers and sellers for 30 years. I can’t remember a typical seller saying, “Let’s limit who can see my property.” I remember a client asking a simple question: “How can I get the strongest offer?” The answer to this question is to consistently provide exposure to the largest pool of qualified buyers, supported by multiple independent studies.
A Zillow study that analyzed more than 10 million transactions found that sellers listed from the MLS left more than $1 billion in 2023 and 2024 combined. This typically results in losses of nearly $5,000 per home.
A joint analysis by Bright MLS and Drexel University found that homes listed on the MLS sell for an average of 17.5% more than comparable commercial properties. Bright MLS’s 2025 report, which covered approximately 100,000 transactions, also found no measurable price advantage for office-only properties.
When an agent’s fiduciary responsibility includes maximizing the seller’s financial results, these numbers are not a footnote. They are arguments and ultimately obligations.
The other side of the coin – the buyer
There are things that are often overlooked in today’s fiduciary duty framework. That said, there are two parties to every real estate transaction. Of course, we serve sellers, but we also serve buyers who are represented by agents who have their own fiduciary duties.
Marketplaces that intentionally limit buyers’ access to property information or reset a property’s history of days on market each time it changes stages don’t respect that side of the equation. Transparency is the foundation of a functional market.
When market data is selectively hidden, the consumers who pay the price are often the least informed and least leveraged consumers. Zillow’s research also found that non-MLS listing losses in communities of color were a median of 3.2 percent, more than double the losses in predominantly white areas (1.2 percent). This is a moral issue that our industry has worked hard to overcome.
On the need for sensible rules
There are arguments that I sympathize with. MLS should not be over-regulated, rules can be onerous, and our industry works best when experts are empowered to make decisions. I basically agree.
But here my opinion is divided. Society needs rules. We have laws and regulations not because everyone does wrong things, but because some people do wrong things. Functional markets do not emerge by chance. These are built on shared rules and applied consistently so participants can trust what they see and how they will compete.
Our real estate market has been built over decades to be one of the most transparent, competitive and consumer-friendly real estate markets in the world. That happened because our industry agreed to common standards that keep the playing field level and open.
What we need is not fewer rules. We need something sensible that is consistently enforced and designed based on the real interests of consumers. When NAR overhauled its explicit cooperation policy last year and introduced the “Multiple Listing Option for Seller” framework, it sought to maintain cooperation while adding flexibility for sellers with legitimate privacy and timing needs. Is it perfect? No, but it’s a process and we need to keep the conversation going.
questions we should ask
Days on the market and price history are not liabilities. Even if they are part of an uncomfortable conversation with a client, they are helpful signals. Hiding evidence does not change the condition of the asset or the strength of the surrounding market.
If a seller’s home has been on the market for 90 days, the problem isn’t that anyone realizes it’s been on the market that long, the problem is more likely that it’s been listed at a high price. It could be deferred maintenance, a difficult location, or a change in the market.
Building a marketing strategy based on fear of transparency is not a fiduciary responsibility. It’s avoidance and doesn’t help the seller. Again, statistically, it’s very likely to end up harming them.
Hiding information without being fully transparent and preparing for the reality of the process is not in the client’s interest. We also have a way to measure how long it takes to get your home ready for the market. This is called “Coming Soon” and is available in most markets and approved by most MLSs.
The most important thing an agent can offer a seller is not clever sequencing of exposure windows. It’s honest advice, maximum market competition, and the courage of professionals to have the difficult conversations before they get expensive.
That is what fiduciary duty has always meant and what it should continue to mean.
Gretchen Rosenberg is president and CEO of Kentwood Real Estate in Denver, Colorado, and executive liaison for industry relations for HomeServices of America.
