Over the past couple years the discussion concerning private listing networks has been simmering toward a boil in industry trade publications and in arenas like the Association of Real Estate License Law Officials (ARELLO). A private listing network (PLN) is a real estate platform or group where property listings are shared selectively, typically off-market, meaning they are not available on the Multiple Listing Service (MLS) or otherwise made available to a wider licensee population or to the general public. These networks often market themselves as catering to exclusive buyers and sellers who prefer discretion, privacy or want to test the market quietly.

Some of the cited features of a PLN:
● Exclusive access: Only select agents, brokers or qualified buyers have access.
● Discretion and privacy: Sellers might use these networks to avoid public exposure, protect identity or keep the sale confidential.
● Pre-MLS exposure: Agents may list properties privately before going public to gauge interest.
● Non-Traditional Marketing: Properties are promoted through personal networks, private emails or invite-only platforms.

Some of the concerns being raised about PLNs:
● Fewer buyers may see the property, which could lead to a lower sale price.
● Longer time on the market.
● Restricted marketing could foster Fair Housing Act violations.
● Agent conflict of interest.

When we look at existing Georgia law, we have some advantages that other states may not in addressing the operations of PLNs. Georgia was at the forefront in 1993 when it adopted the Brokerage Relationships in Real Estate Transactions Act (BRRETA) to require a licensee to outline to potential clients the fees and services that they offer. Under BRRETA, the broker’s duties depend on the relationship created by the brokerage engagement; the chapter is expressly aimed at governing broker-client relationships and can support private rights of action and defenses.

O.C.G.A. § 10-6A-5 requires a broker engaged by a seller to promote the seller’s interests, be loyal, exercise reasonable care and disclose material facts known to the broker that could reasonably affect the seller’s decision. Section 10-6A-9 says that when a duty to a client conflicts with a duty to a customer, the client duty controls.

Basically, a private listing network is not prohibited, but if it is used to suppress exposure in a way that hurts the seller’s ability to obtain the best terms, that can become a BRRETA problem because the broker may not be promoting the client’s interests first. A seller can agree to a limited marketing strategy, but that consent needs to be informed and consistent with the brokerage agreement and the broker’s duties.

Likewise, license law does not ban the PLN structure; it simply must operate in a framework not prohibited by unfair trade practices. Georgia Code § 43-40-25 prohibits licensees from intentionally advertising in a misleading or inaccurate way, making substantial misrepresentations, acting for more than one party without written consent. It also prohibits offering real estate without the owner’s knowledge and consent or on terms not authorized by the owner. That same section also provides an enforcement mechanism for the Georgia Real Estate Commission to enforce fair housing directly with regard to a broker’s actions. If a private listing network is presented to a seller as a way to maximize exposure but is actually
designed to steer opportunities to the broker’s own pipeline, referral sources or favored buyers, the commission may look at that as dishonest dealing, a substantial misrepresentation or even a Fair Housing violation under § 43-40-25.

At its June meeting, the commission, following prior discussions stemming from in-state concerns, as well concerns raised through ARELLO, motioned to issue a proposed rule for public comment that would build upon existing Georgia laws. When the commission adopts a rule, it holds the equal force and effect as law but is usually done in a manner to provide clearer interpretation. This rule, once public comment is received and considered, could then be adopted to provide clearer guidelines on marketing properties consistent with both BRRETA and license law, ensuring that the seller has made an informed decision and that the broker acted with loyalty and reasonable care toward obtaining the seller’s best terms.

Jeff Ledford is the external affairs officer for Georgia REALTORS®.