Agent Handshake, it's legality and the MLS

As more and more people begin using Point2, we have a non-stop flow of questions that come in regarding Agent Handshake. Many MLSs are now telling their members that they can not use Agent Handshake. So I thought it important to post this information about the system, its legality and its relationship to the MLS.

Facts
a) Real estate brokers enter into listing agreements with real estate sellers to advertise their listings;
b) Members are bound by the Point2 Agent License Agreement (“License”);
c) The License contains a provision that states as follows:“Where User (Member) participates in or utilizes Agent Handshake, User grants the right to use, publish, promote or otherwise advertise User’s shared listings to other applicable Point2 Agent users. Further, User represents and warrants that they are authorized to make said grant of rights to other Point2 Agent users…”;
d) After agreeing to the License, Members can enter listing information about real estate into their Point2 Agent portal and subsequently choose to advertise those listings on other specific Point2 Agent Member portals;
e) Of that listing information in d), a separate, proprietary compilation of listing information about real estate may or may not be entered into the local MLS system.
f) Each jurisdiction (State/Province) has regulatory bodies relating to the “trade” of real estate. The regulations often relate to the advertising of Multiple Listing Service real estate listings. The regulations protect real estate consumers.

Questions
Questions about Agent Handshake arise with respect to different Real Estate Boards and Legislation and Multiple Listing Services. Generally, the questions tend to arise due to a lack of clarity with respect to:
a) How the Agent Handshake system operates among the members of the Point2 Agent Community (“Member(s)”)?
b) How the Agent Handshake system operates between Members and third parties?
c) How the Agent Handshake system operates between Members and MLS’s?

Analysis
a) How the Agent Handshake system operates among Members?
The Agent Handshake system and how it relates to locate real estate professionals, is generally governed by the listing agreement between broker and seller, the License and applicable state legislation respecting the regulation of the trade of real estate.

Normally, these governing documents recognize that the listing information is owned by the broker. As the owner of the listing information, the broker is generally able to advertise this listing information in any medium or mechanism as desired (subject to certain requirements of state legislation). The Agent Handshake system is an applicable mechanism that the broker is legally entitled to advertise their listing information on.

b) How the Agent Handshake system operates between Members and third parties?
Simply put, it doesn’t.

Agent Handshake is a “closed system.” It does not accept any compilations of listing information from other systems. A Member must enter a separate, proprietary compilation of listing information in the Agent Handshake system. That compilation of listing information can only then be shared with other Members of Point2 Agent.

However, the Member also may choose to utilize Point2’s listing syndication services. This service lets Members advertising their compilation of listing information on recipient sites such as Google Base and RealEstate.com.

c) How the Agent Handshake system operates between Members and MLS’s?

Similar to b), it does not. The Listing entered into an MLS system is a different compilation of the listing than the one entered into the Agent Handshake system by Members. Therefore, two diffferent listing information compliations of the same real estate may exist in each respective system. These compilations are two different pieces of property, both owned by the Listing Broker.

The MLS system and how it relates to listing compilations created using their tools is generally governed by the listing agreement between broker and seller, the MLS licensing agreement and applicable state legislation respecting the regulation of the trade of real estate.

Conclusion
Agent Handshake and the MLS are two different systems. Listing information in each respective system are both governed by the listing agreement between broker and seller and applicable state legislation respect the trade of real estate. However, the listing compilations in each system are governed by the respective systems Agreement with the user and neither system’s Agreement have any impact on the other system.

Now, that is the long answer to the question: Why is my MLS telling me that I can not use Handshake? The short answer is that most MLSs mistakingly assume that listings in the Point2 system are being imported from the MLS. They are not MLS data, but are rather original content posted manually by our brokers and their representatives (agents). Thus the MLS has little or no jurisdiction over the use of that data in almost all cases.

Agent Handshake, MLS Data, legal, real estate listing use, real estate advertising

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