I am not an attorney. I want to say that upfront, because the conversation our industry is having right now has drifted so far into legal territory that it can feel like we need one in every room to address the topics.
But I have been in residential real estate for 30 years, and what I’m watching unfold doesn’t require a law degree to understand. It requires common sense.
The argument making the rounds goes like this: Fiduciary duty requires agents to follow their sellers’ lawful instructions. Therefore, any MLS rule that constrains a seller’s marketing choices is an illegal overreach that forces agents to choose between breaking the law and losing their livelihood.
While that sounds compelling, it is also incomplete.
Fiduciary duty is not a blank check
Let’s examine what fiduciary duty actually means in real estate. Under the framework most of us learned in licensing education, the OLDCAR acronym used by the National Association of Realtors encompasses:
- Obedience
- Loyalty
- Disclosure
- Confidentiality
- Accounting
- Reasonable care
Notice that obedience sits alongside five other duties.
An agent’s duty of obedience requires following lawful client instructions. But fiduciary duty also requires disclosure — the obligation to share information that could affect a client’s ability to achieve the best price and terms — as well as reasonable care, the duty to apply professional expertise, not simply execute whatever a client requests.
Here is where the fiduciary-duty argument falls apart for me: It presupposes that the seller, acting on fully informed and independent judgment, has chosen to withhold their home from maximum market exposure. In my experience, that is rarely how it begins.
More often, sellers are presented with polished marketing materials suggesting that days on market will “damage” perception, that a public price reduction will “signal distress,” and that a phased, pre-market strategy — keeping the listing within a private network — is the best path forward.
That consumer desire has not existed throughout my career; it has been recently “manufactured” to instill fear in the consumer.
I’ve worked with buyers and sellers for three decades. I cannot recall a typical seller saying, “Let’s limit who sees my property.” What I do recall is clients asking a simple question: How do we get the strongest offer? The answer to that question, backed by multiple independent studies, is consistent exposure to the largest qualified buyer pool.
Research from Zillow, analyzing more than 10 million transactions, found that sellers who listed off the MLS collectively left more than $1 billion on the table in 2023 and 2024 — a typical loss of nearly $5,000 per home.
A joint analysis by Bright MLS and Drexel University found that MLS-listed homes sold for an average of 17.5 percent more than comparable off-market properties. Bright MLS’s 2025 report, covering roughly 100,000 transactions, also found no measurable price advantages to office-exclusive listings.
If an agent’s fiduciary duty includes maximizing a seller’s financial outcome, these numbers are not a footnote. They are the argument and, ultimately, an obligation.
The other side of the coin — the buyer
There is something the fiduciary-duty framing of this day and age tends to overlook: Every real estate transaction has two parties. We serve sellers, yes — but we also serve buyers, who are represented by agents with their own fiduciary obligations.
A marketplace that deliberately limits buyer access to listing information or resets a property’s days-on-market history with each phase change does not honor that side of the equation. Transparency is the foundation of a functional market.
When market data is selectively obscured, the consumer who pays the price is often the one with the least information and the least leverage. The Zillow study also found that off-MLS listings in communities of color resulted in median losses 3.2 percent, more than twice the amount (1.2 percent) in majority-white neighborhoods. That is a moral issue, one our industry has worked hard to overcome.
On the necessity of sensible rules
There is an argument for which I have sympathy — that the MLS should not become over-regulatory, that rules can grow cumbersome and that our industry works best when professionals are empowered to exercise judgment. I agree — in principle.
But here is where I diverge: Society needs rules. We have laws and regulations not because everyone will do the wrong thing, but because some will. Functional markets don’t happen by accident. They are built on shared rules, enforced consistently, so participants can trust what they’re seeing and how they’re competing.
Our real estate marketplace has been built over decades into one of the most transparent, competitive and consumer-friendly property markets in the world. That happened because our industry agreed on shared standards that kept the playing field level and open.
What we need are not fewer rules. We need sensible ones — enforced consistently and designed around the consumer’s actual interests. When NAR reviewed the Clear Cooperation Policy last year and introduced the “Multiple Listing Options for Sellers” framework, it attempted to preserve cooperation while adding flexibility for sellers with legitimate privacy or timing needs. Is it perfect? No, but it’s a process, and we should continue the conversation.
The question we should be asking
Days on market and price history aren’t liabilities; they are useful signals, even when part of an uncomfortable conversation with a client. Hiding evidence doesn’t change the condition of the asset or the strength of the market around it.
If a seller’s home sits on the market for 90 days, the issue is not that everyone sees that it’s been on the market for that long, the issue is more likely that it is an overpriced listing. It may be deferred maintenance, a challenging location or a shifting market.
Building a marketing strategy around fear of transparency is not fiduciary duty; it’s avoidance and does not help the seller. Again, statistically, it more than likely ultimately harms them.
We do our clients no favors when we hide information rather than being fully transparent and preparing them for the reality of the process. We also have a method for the time it takes to get a home ready for market — it’s called “coming soon,” available in most markets and approved by most MLSs.
The most important thing an agent can offer a seller is not a clever sequencing of exposure windows. It is honest counsel, maximum market competition and the professional courage to have hard conversations before they become expensive ones.
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 Affairs at HomeServices of America.
