Someone Put a Price on “Seller Choice”
The moment the defense starts to come undone
By Summer Goralik
When my son was about three years old, he would say to me, “Mom, I don’t like what I don’t like.” We were usually disagreeing because I could not get him to do something I wanted him to do, but I still admired his confidence. Three years old. Impressive, right?
My problem with private-listing networks is not simply that I don’t like them. But before I get into that, let’s take a seat at the table.
Remember the boardroom scene in the film Big?
A group of toy executives in suits is gathered around a table discussing their newest product: a skyscraper that transforms into a robot. Everyone in the room seems prepared to move forward—until Josh, played by a young and lovable Tom Hanks, sporting tennis shoes, picks up the toy, turns it over in his hands and says:
“I don’t get it.”
“What exactly… don’t you get?”
“It turns from a building into a robot, right?”
“Precisely.”
“Well, what’s fun about that?”
That has been me throughout the private-listing debate.
I have picked up the pitch. I have turned it over in my hands. I have read the arguments, listened to the advocates and tried to understand how less exposure became a superior marketing strategy.
I don’t get it.
What’s so great about advertising your house to fewer buyers, potentially receiving fewer offers and possibly walking away with less money?
Sure, I understand privacy. I understand that some sellers have legitimate personal, financial or security reasons for limiting exposure.
I also understand an agent carrying out a seller’s independently expressed and fully informed instructions. By the way, ladies and gentlemen, that is fiduciary duty in action. So, yes, count me in.
But what I do not understand—any day of the week—is a brokerage adopting limited-exposure campaigns as a full-blown business strategy and then asking its agents to sell that strategy to their principals.
All under the banner of “seller choice”?
If sellers want to withhold their listings from broader market exposure, that’s their choice. Sellers should have more options.
Hey, if sellers want fewer buyers, exclusivity and restricted access—that’s their choice.
Are sellers really lining up and demanding private listings?
If they are, I had no idea. The point is, I don’t get it.
I do not believe limited exposure helps an already unaffordable housing market. I do not believe limiting visibility into days on market, price adjustments or listing history serves the greater good of the real estate market.
Those practices may appear to benefit a seller today. But tomorrow, when that same seller becomes a buyer searching for reliable information and equal access to inventory, the system may work against them.
Price discovery is real, and transparency should be the standard. Any agenda that asks the industry to move away from both feels completely backward to me. It has me thinking, What year is this?
Nor do I believe dual agency should be our go-to when we talk about licensed representation—particularly when limited marketing may increase the listing agent’s opportunity to represent the buyer. But I guess I am biased on this because I have seen too many things go wrong. Frankly, I remain surprised that dual agency is still legal in so many states.
Put another way, I do not support a listing agent advocating for private marketing when that strategy, by design, may increase the agent’s opportunity to represent the buyer and earn additional compensation.
At least not without full disclosure of that possibility—and the risks and tradeoffs that come with dual agency.
Listen, I feel these things as a former DRE investigator. I feel them as a compliance consultant. I feel them as an expert witness every time I walk toward a witness stand, ready to testify about the standard of care, fiduciary duty and what happens when both are breached. I feel them as someone who has spent years in this industry.
But most of all, I feel them as a human.
Here’s the deal, though: This has been my baseline on private listings for the past two years. Then I locked eyes with the latest headline: Listings were reportedly being removed from a major consumer portal in exchange for a broker-funded marketing package.
And just like that, the picture shifted.
The reported email
In an email reported by Real Estate News, Compass asked certain New York City agents to remove active and in-contract listings from Zillow-owned StreetEasy “where your sellers and you are comfortable.” Participating agents were reportedly offered, “in exchange,” a 30-day, $1,000 digital marketing package across Google, Facebook and Instagram.
According to Real Estate News, a Compass representative declined to comment when asked about the email and marketing incentive.
Real Estate News also reported that some agents planned to remove their listings temporarily to take advantage of the marketing credits before restoring them later.
Inman reported that materials it obtained appeared to show agents being coached to explain that removing a listing from StreetEasy could preserve flexibility, protect days on market and pricing history, and still maintain broad exposure. Inman also stated that it had sought to confirm the authenticity and source of the apparent “Seller Script.”
Whether those particular materials are authentic matters. But taken together, the reports raise questions about more than the existence of a marketing package. This compliance consultant wants to know how the strategy was presented to sellers.
To be clear, the reported offer was a digital marketing package that could benefit the property and the seller. And to be fair, I suppose, an agent could sincerely believe that the alternative advertising was better for a particular client.
But the package could benefit the agent, too. Agents frequently contribute toward—or pay outright for—photography, advertising, social-media promotion and other listing expenses. If a brokerage agrees to cover $1,000 in marketing costs when the seller approves a particular distribution decision, the seller’s answer may carry economic value for the fiduciary presenting the choice.
Was that potential benefit explained to the seller? Would the agent have made the same recommendation if the marketing package did not exist?
How were existing sellers approached about removing their listings from a major consumer portal? How are prospective sellers being presented with the strategy?
The news reporting does not answer those questions. But those questions are critical because this is not an ordinary salesperson merely recommending a product. This is a fiduciary advising a principal whose interests must come first.
And that is where, for me, “seller choice” starts to come undone.
The phrase suggests that the seller is driving the decision and the fiduciary is carrying it out. But here, a brokerage reportedly encouraged agents to remove listings from a major consumer portal when they and their sellers were comfortable doing so—and attached a marketing benefit to that decision.
The seller may still choose, yes. But that does not make the choice entirely organic.
Back to the boardroom
I am back, looking at the confusion on Josh’s face.
Now imagine that, instead of addressing his concerns or improving the toy, the company simply offered its sales force something of value for persuading customers to choose it—something that might benefit both the salesperson and the consumer.
Would that improve the product? Or would it make you wonder whose interests were driving the pitch?
It’s one thing for a seller to independently request privacy—or for a fiduciary to recommend limited exposure based on credible evidence, that seller’s particular circumstances and full disclosure.
But it’s quite another when a brokerage encourages agents to remove listings from a major consumer portal and offers a marketing benefit when sellers agree.
It’s at that point that I start looking at the toy differently.
We have seen conflicts before
You know what this reminds me of?
Similar concerns arise when a broker or agent recommends a title company, escrow provider or other settlement service provider from which they may also benefit. The recommendation may be perfectly sound, but the consumer should understand when the person making it has a financial interest in the answer.
Throughout my career, I have investigated and reviewed plenty of matters in which affiliations and potential financial benefits were not properly disclosed.
Bear with me. The comparison is not exact, but the underlying conflict feels familiar. It prompts a central question: When a financial benefit is tied to one particular outcome, is the fiduciary merely presenting a choice—or potentially steering the client’s decision?
Here, the potential consequence may be even greater. A seller directed toward a particular provider is generally deciding who will perform a service. A seller encouraged to restrict listing distribution may be giving up exposure to qualified buyers actively searching in that market.
That lost opportunity may be impossible to measure. The seller may never know who did not see the property, who might have scheduled a showing, who might have written an offer or whether broader competition might have produced a different result.
A social-media campaign may provide meaningful exposure. It might even prove successful. But even a successful campaign does not establish that the property reached an equivalent pool of qualified buyers, nor does it tell us what broader market exposure might have produced.
This is precisely why the marketing incentive muddies the water—and perhaps even kicks the private-listing debate up a notch. If I’m wearing my compliance hat (which is permanently affixed to my head), it is also why disclosure matters.
Maybe every seller was told about the marketing package. The reporting does not tell us. Maybe every agent would have made the same recommendation without it. That, I am not so sure about. And maybe removing the listing genuinely served each seller better.
Even if I remain skeptical, any or all of these things could be true.
But all of this requires an honest conversation between the fiduciary and the seller about the exposure being surrendered, the brokerage’s and agent’s interests in the strategy and the economic benefit attached to one particular choice.
The seller should be able to evaluate not only the proposed strategy, but also any benefit the recommending agent or brokerage might receive from the decision. That conversation should also address the possibility of dual agency, the additional compensation it may generate and the tradeoffs associated with that form of representation.
Listen, these broader compliance questions are not unique to listing distribution or marketing strategies. They arise whenever a brokerage offers its agents a benefit tied to a particular client decision or transaction outcome.
What comes next?
The story is far from over.
In a separate matter, Senator Elizabeth Warren has already requested information about Compass’s private-listing partnership with MRED. This reported incentive may raise a new set of questions.
Additional reporting may uncover facts we do not yet have.
Perhaps the answers will show that sellers were fully informed and that the strategy served their interests. But the opposite may also be true.
Until then, I will be here, turning this latest development over in my hands and looking more closely at what may be driving the private-listing pitch.
One thing is certain: The days of simply saying, “I don’t get it,” are over.
No, no. I get it now. I see it.
I’m just wondering who else does.
Writer’s note: The opinions and recommendations expressed in this article are based on Summer Goralik’s experience as a real estate compliance consultant and former investigator for the California Department of Real Estate. They are provided for informational purposes only and should not be construed as legal advice. Readers should consult with their brokerage and/or qualified legal counsel in their jurisdiction for guidance on specific situations.
About Summer
Summer Goralik is a Real Estate Compliance Consultant and licensed Real Estate Broker (#02022805). Summer offers real estate brokers a variety of consulting services including assistance with California Department of Real Estate investigations and audit preparation, mock audits, brokerage compliance guidance, advertising review, and training. She helps licensees evaluate their regulatory compliance and correct any non-compliant activities. Summer has an extensive background in real estate which includes private sector, regulatory and law enforcement experience. Prior to opening her consulting business in 2016, she worked for the Orange County District Attorney's Office as a Civilian Economic Crimes Investigator in their Real Estate Fraud Unit. Before that, Summer was employed as a Special Investigator for the DRE for six years. Among many achievements, she wrote several articles for the DRE, which still live on the Department's website today. Prior to her career in government and law enforcement, Summer also worked in the escrow industry for nearly five years. For more information about Summer's background and services, please visit her website.
