Off-MLS Listings: A Business Strategy or a Compliance Risk? What Real Estate Professionals Need to Know
An editorial by Brian Pate, Pate Realty Group and Brian Pate Seminars
As debates continue around the value and transparency of off-market listings, regulators are sharpening their focus. For real estate professionals and brokerages, it’s no longer just a conversation about marketing strategy — it’s a matter of legal compliance and professional accountability.
Imagine this scenario: An investigator from the North Carolina Real Estate Commission walks unannounced into your office.
They’re not just there to browse marketing materials — they’re asking direct questions about your firm’s policies, practices, and paperwork regarding off-MLS activity. Do you even have a written policy? If not, start here.
And they’re taking notes.
Off-MLS Listings Under the Microscope
While off-market listings — often promoted as “Coming Soon,” “Pre-MLS,” or “Private Listing Networks” (PLNs) — can have legitimate uses, they’re increasingly being scrutinized when they appear to benefit the brokerage more than the client.
Regulators are looking for signs that a seller’s decision was informed and voluntary — not part of a widespread brokerage strategy.
Investigations often start with questions about office policy:
Do you have written procedures covering off-MLS activity?
Can you clearly explain why a property wasn’t listed on the MLS?
Are your agents trained on how to handle such listings, including when it comes to disclosures and dual agency?
Then the file review begins. Investigators may want to know how many properties were marketed off-MLS, how those listings were documented, whether buyers were fully informed about the lack of data such as days on market (DOM), and whether price history was available.
They’ll also look at how dual agency was handled — if both buyers and sellers were represented by the same brokerage — and whether proper disclosures were provided.
In short, regulators want to know: Was the seller’s best interest truly at the center of the strategy?
Compliance Comes Down to Intent and Transparency
It’s not illegal to keep a property off the MLS — if it’s the client’s informed choice.
However, if the practice appears driven by brokerage-level incentives, like controlling inventory or maximizing dual agency opportunities, it could spell trouble.
Good documentation and disclosure practices matter. A well-prepared file can clearly show that the client was advised of all options, understood the trade-offs, and still made the decision to remain off-market. That file may protect your brokerage in the event of an audit or investigation.
But when a pattern emerges — one where a high volume of off-MLS listings appears to be the norm, not the exception — regulators may interpret that as a systematic violation of fair housing principles, fiduciary duties, or transparency requirements.
And make no mistake: They’re empowered to act. Through investigations, rule enforcement, and license discipline, regulators can — and do — shift the industry from within.
Not to mention, the potential of a class action lawsuit by a well versed attorney.
The Bigger Picture
At its core, this issue is not about choosing sides in the public debate over “delayed marketing,” “office exclusives,” “coming soon,” and other forms of marketing that will be available by the end of September this year.
It’s about how real estate professionals uphold their fiduciary obligations. It’s about ensuring every party in a transaction is properly represented — and that no one is left in the dark because a marketing tactic favored control over consumer access.
One complaint might be chalked up to miscommunication. But multiple complaints, combined with a paper trail showing the widespread use of off-MLS strategies, could signal a brokerage-wide compliance problem.
The lesson?
Step back and look at the entire board.
Regulators aren’t impressed by flashy pitch decks or creative branding.
They’re interested in facts; the kind found in files, policies, and transaction histories.
Final Word
Off-market listings may seem like a smart strategy — until they’re not.
For real estate professionals, the key takeaway is simple: Creativity in marketing is not a shield from liability.
If your firm uses off-MLS strategies, ensure that every decision is client-driven, fully documented, and aligned with your duties under state law.
Because when the knock comes at the door, it won’t be a sales lead — it’ll be the start of a compliance review and your real estate license, and your livelihood will be on the line.
About the author:
Brian Pate was licensed in North Carolina in 1993 and has been an instructor since 1995. He has served as the President of the North Carolina Real Estate Educators Association two times and will serve a third term beginning in October 2025.