We continue to consider the issues at stake in the lawsuit filed by the Department of Justice (DOJ) against the National Association of Realtors (NAR). The DOJ thinks that NAR should be prohibited from adopting a policy whereby an MLS member may withdraw permission for other MLS members to display his listings on their websites.

In the old days you could walk down Main Street where the real estate offices occupied storefront space alongside the shoe store and the camera store, etc. In the windows of those real estate offices were displayed flyers, photos, and descriptions of properties that the company had listed for sale. You might look at those displays and be enticed to walk into the office -- sometimes interested in a particular property shown on the window, sometimes just to inquire about local properties in general. You might even have been interested in listing your own property.

Okay, maybe the old days weren't exactly like that for you; and, indeed, the practice of displaying listings in the windows of a real estate office is one that still persists. The point is -- and keep this in mind -- a primary reason for those displays in the window is to entice you to come into the store.

We don't walk down Main Street much anymore; but we do surf the web where there are lots more stores, some of which would never have been allowed on Main Street. In cyberspace there are whole streets of real estate companies, one after another. And what's in their "windows"? Displays of listings, maps, mortgage qualifiers, school district information, etc.

One thing hasn't changed. Those listing displays and all the other gimmicks on the website are not there simply as a public service. The point is still to entice you into the store -- to get you into some kind of business relationship, even if it is only as minimal as obtaining your name, contact information, and some idea of what your real estate interest might be.

Seldom in the old days or now would you see the listings of another broker displayed in the actual window. That's because permission must be given to do so, and such permission is seldom given. Listings are hard to get. It takes time, money, and effort to obtain them; and there's little reason to allow your competitor to use your listings in order to capture customers that might otherwise have come to you. (There are, by the way, lots of reasons to allow your competitor to show your listings to customers he has obtained on his own, and to cooperate with him in the sale. That's what the MLS is all about.)

In a nutshell, what the DOJ wants is to require that every broker allow every other broker to display his listings in their windows (i.e. on their websites). Indeed, absurdity of absurdities, they think this should even apply to the benefit of brokers who neither have listings nor make any attempt to get them. That is, the brokers who do have listings should be required to allow listing-less brokers to display their listings. That's right, if the DOJ has its way, the listing-less broker would be allowed to use the work products of real listing brokers in order to attract customers who otherwise might have come to those real listing brokers.

Now why would an arm of your government and mine think that this is a good idea? You've got to work with me here. Try to put yourself into the mind of a DOJ staffer.

The DOJ thinks it would be a good thing for consumers to go into the stores of listing-less brokers and to do business with them. The DOJ thinks that listing-less brokers are more efficient, and that they can and will give consumers a better deal such as through buyer rebates. And, in the DOJ mindset, if something allows a consumer to pay less, it must be, by its very nature, good and righteous.

It is, of course, nonsense to say that the listing-less brokers are more efficient. They don't obtain listings more efficiently, because they don't obtain listings at all. Of course, if the DOJ has its way, they will be more efficient at obtaining listing displays to put in their window, because the government will have required that they get them for free, from others. It would be something like saying a welfare recipient is more efficient at obtaining food and sustenance than others, because he or she doesn't waste all that time working for it.

Imagine two real estate store fronts on Main Street. Both have a sign that says, "Member of the MLS. We can show you all properties." One of them has listings displayed all over the window. The other, having no listings, has no listing displays; but it does have a sign that says, "Buyer rebates offered here." Some people will be inclined to go into one, some will be attracted to the other; and that's just fine. The DOJ, however, wants to require that the listing-less office be allowed to cover its window with listing displays too, even if they are someone else's listings. That doesn't seem just fine.

Published: October 17, 2005

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Bob Hunt is a director of the National Association of Realtors and is author of the recently published book, "Real Estate the Ethical Way." A graduate of Princeton with a master's degree from UCLA in philosophy, Hunt has served as a U.S. Marine, Realtor association president in South Orange County, and director of the California Association of Realtors, and is an award-winning Realtor. Contact Bob at .