Broker AVM: Exploring the Controversy

Transcription

1 2014 Broker AVM: Exploring the Controversy Clareity Consulting clareity.com 5/8/2014 NY v1 04/28/2014 9:59 AM

2 Table of Contents Introduction... 1 The Crux of the Controversy... 1 The Big Argument: Is an AVM a Broker s Valuation?... 2 Why This Controversy Came Up Now... 4 Other Arguments Related to The Realty Alliance, et al What s Happening in May 2014?... 7 Conclusions... 9 About Clareity Consulting Appendix 1: The Realty Alliance Letter to NAR Copyright 2014 Clareity Consulting. All Rights Reserved. Page 1

3 Introduction For some time, many MLSs have licensed active and sold data to technology companies for the production of automated valuation models (AVMs). In turn, these AVMs are sold to lenders and other financial institutions. More recently, brokers have wanted to sell AVMs by partnering with technology companies, and they have alternately found themselves permitted or blocked, depending on which MLS market they are in. In those markets where the MLS has restricted brokers use of MLS data by not licensing them the data feed they need to create AVMs, this has been a source of conflict and controversy. AVMs have been around since the mid-1980s. AVMs estimate the value of a property using computer algorithms, fueled by comparable property sales data. AVMs are often used on individual properties, e.g., to determine the maximum value against which a bank is willing to lend or re-finance, but since the mid-1990s financial institutions have used AVMs to evaluate their portfolios containing large numbers of properties as an important risk management step. AVMs were originally designed to primarily use public records data, but in recent years MLS data has been added to the mix. The combination of MLSs more detailed property information, more recent and accurate comparable properties, detailed sales terms, and information acquired during physical inspection has significantly increased the accuracy of AVMs. As a result, MLS data has become a valuable ingredient for companies that generate AVMs. The overall question is: who will be able or should be able to monetize MLS data with AVM customers? AVM is therefore a flashpoint in the relationship between brokers and MLSs, a relationship which has recently experienced an increase in its share of tensions. The Crux of the Controversy Valuations are directly addressed in the first section of NAR s Handbook on Multiple Listings Policy, which defines MLS in part as a means by which information is accumulated and disseminated to enable authorized participants to prepare appraisals, analyses, and other valuations of real property for bona fide clients and customers. Brokers have relied upon this key language to build their case that they should be allowed to use MLS data to create valuations, and it is worth parsing through the language in that phrase carefully to see what exactly is permitted. 1. Authorized 2. Participants 3. Appraisals, analyses, and other valuations 4. Bona fide clients and Bona fide customers Copyright 2014 Clareity Consulting. All Rights Reserved. Page 1

4 Authorized means that a person or firm has the authority to see MLS data; this means being an MLS subscriber with data access rights. Participants has the specific definition, spelled out in Section 2 of the Handbook, of a person or firm which has both a real estate license and a good-faith intent to buy or sell property. Appraisals, analyses, and other valuations: Appraisals is the most stringent kind of valuation, involving a licensed appraiser and an on-site inspection for full appraisals. Analyses may include a valuation that may involve an on-site or drive-by component, such as a Broker Price Opinion, or may not, such as a CMA or an AVM. Other valuations is a catch-all term intended to give the concept its broadest possible sense, and is another phrase that may be considered to include AVMs. Bona fide clients; Bona fide customers. The client versus customer distinction is set out in Section 1 of the NAR Code of Ethics and Standards of Practice. A client is a party to a transaction with whom a broker is dealing with in an agency capacity, one in which there is fiduciary duty to the other party. A customer is a party to a transaction whom one is dealing with in a non-agency capacity, where no such fiduciary duty to that party exists. 1 Bona fide clients means people or entities seeking to sell or value property. Bona fide customers are parties to the transaction who receive information or services. Banks and lenders are first-class examples of bona fide customers. They have a compelling interest in accurate valuations, they assume a degree of risk in originating and securitizing loans, and without accurate valuations, the entire real estate transaction, in the absence of cash buyers, would be impossible. So, an authorized participant commonly, a broker who is part of an MLS can create and sell valuations which may well include AVMs to bona fide clients or customers, e.g., banks and financial institutions. But is the answer to the controversy really that simple? The Big Argument: Is an AVM a Broker s Valuation? There are two categories of AVMs. The first is Interactive AVM (sometimes called broker assisted AVM) where the broker, for example, may select or reject specific comps or add adjustments or local market knowledge to the valuation. In the case of Interactive AVMs, the broker obviously performs work and adds value to the report. 1 The Code of Ethics states: As used in this Code of Ethics, client means the person(s) or entity(ies) with whom a REALTOR or a REALTOR s firm has an agency or legally recognized non-agency relationship; customer means a party to a real estate transaction who receives information, services, or benefits but has no contractual relationship with the REALTOR or the REALTOR s firm. Copyright 2014 Clareity Consulting. All Rights Reserved. Page 2

5 The second type of AVM is truly automated, does not require human touch or review, and may be used by a lender to value a single home, or to value hundreds or even thousands of homes in a portfolio. In order to handle the larger volume orders, AVM software needs a continuous RETS feed of MLS data to complement their public records data and other databases. In the truly automated AVM, the MLS data is processed by the AVM software without intervention from the broker. So, the question that comes up, is whether the AVM that is being provided to the financial institution can be considered the broker s work product? To be clear, the financial institution never receives raw MLS data. Rather, it receives AVM reports created and organized by software the broker has licensed. Brokers also provide input to the AVM software provider that is then coded into the AVM software so the system learns from broker input to improve future valuations. Also, the broker s brand appears on the top of these reports, lending additional credibility to the AVM. To some, this may not seem like the broker s sweat of the brow but when evaluating what constitutes a creative, original work, the legal bar is low. In the 1991 Supreme Court case, Feist Publications, Inc. v. Rural Telephone Service Co, the Court distinguished between data that was reproduced, materially unchanged, and data in which the author selected, arranged, or ordered the information according to his own organizing principle. A copyrightable work, one in which the author did work to deal with the underlying facts, was by definition original. In the words of the Court, Facts are not copyrightable Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. The Feist Court thus established that the bar for this human touch was quite low. Applying Feist to an AVM, it is clear that the fields from the MLS feed used to create AVMs make up a stream of facts; an AVM report is not just a rearrangement, but a transformation of those facts, creating new knowledge out of what already exists. According to Feist, brokers who use AVM software on MLS data should be found to have created an original work and should meet the test for making MLS data into their copyrightable, brand-able work product. The industry may be more comfortable with the old fashioned way of preparing valuations using spreadsheets and CMA-style analysis software but it seems unreasonable to forbid brokers from using modern cloud-based software to provide valuations; and whether the software or data are located on the broker s office computers, a local data center, or in the cloud is irrelevant. The relationship between the AVM software company and its broker partners is similar to that between ebay and its sellers. ebay facilitates the transaction between its buyers and its sellers; it provides cloud infrastructure to the sellers, including catalog software and a payment platform. At the same time, the transactions that take place are between buyer and seller not between the buyer and ebay. In the same way, AVM companies can facilitate transactions between brokers and financial institutions; the AVM software company serves as a clearinghouse, providing infrastructure to the seller to meet purchase requests from the buyers. Another point of similarity between ebay and AVM software Copyright 2014 Clareity Consulting. All Rights Reserved. Page 3

6 companies is that both take advantage of network effects. ebay would be a small company if it could only market sellers goods to a few individuals, or if it functioned as a simple storefront for a few sellers. ebay works well because it connects a large network of sellers to a large network of buyers. In the same way, individual brokerages would have very limited options if they could only sell their valuations in their immediate market; the ebay-like clearinghouse allows the brokerage to sell its valuations to a large network of buyers, and for buyers to purchase valuations from a large network of brokers who collectively provide a national footprint. Why This Controversy Came Up Now For many years, brokers have been using MLS data for valuations including data that has been provided by other brokers for comparative market analyses (CMAs), broker price opinions (BPOs), and broker assisted valuations (BAVs). They have used a variety of tools to create these valuations and supply them to customers. Indeed, controversies have arisen over the use of MLS data as technology has evolved, allowing the broker to leverage the data in different ways to achieve the same purpose. Most notably, paper brokers, companies that buy access to MLS data to display it online without an intention to buy or sell property, have misused VOW agreements in MLSs across the country, and dealing with them has been a thorny issue. Now, The Realty Alliance (TRA), a nationwide network of brokers, is advocating for the rights of brokers brokers with every intention of facilitating the purchase and sale of property to use MLS data without hindrance from MLSs. Unlike the paper brokers, or others who have misused the data, TRA wants to ensure brokers have a legitimate means of doing business, facilitated by the MLSs. In collaboration with Collateral Analytics (CA), a partner providing AVM and other analytic tools to TRA broker members as well as other brokers, TRA actively wishes to engage in a conversation with MLSs and NAR to ensure that (1) they are acting within the rules and that (2) the existing rules acknowledge that brokers use of the data is and has been legitimate. Craig Cheatham, President and CEO of TRA, says in his January 27, 2014 open letter to NAR s MLS Technology Advisory Board that the use of MLS data by brokers for AVMs is already permitted by existing NAR rules and policies, including its VOW policies; at the same time, he is willing to speak to these matters at the meeting of any subcommittee equivalent s upcoming meeting and/or at the full committee meeting (See the entire letter in Appendix 1). In other words, he is willing to make a good-faith effort to get clarification on these rules, even as he hopes to influence their interpretation in TRA s favor. Based upon its extensive due diligence, before even beginning the project with CA, TRA concluded that the use of MLS data for AVMs was permissible by NAR rules. Even if NAR clarifies its policies with relation to AVMs, MLSs may find some impediments to sitting down at the table and consummating an agreement. The most common problem will probably be the lack of existing contract language. Many MLSs don t have a data licensing process or document that includes sold listing data for AVM use by brokers; the closest thing they have is a VOW agreement which does Copyright 2014 Clareity Consulting. All Rights Reserved. Page 4

7 not directly address this issue. MLSs will need to draft their own contracts to accommodate the new use, or work collaboratively together or with other industry organizations such as NAR or CMLS to draft a model contract for this purpose. Other Arguments Related to The Realty Alliance, et al. Clareity has heard a number of arguments from MLS executives regarding the specific case of TRA and CA, and the following is our perspective on each one: Is the case of TRA and CA an example of actual broker valuations, or are the brokers just selling access to MLS data? Dr. Michael Sklarz, Chairman and CEO of CA, characterizes the involvement of brokers who use his company s products this way: We get input from both brokers (and appraisers) on the formulas/algorithms which are used in the AVM. After getting this input and programming the logic, the AVM applies this automatically for all future valuations. There is no need for a more specific role after that. In addition, the CA Value Interactive AVM has the broker (or appraiser) select the individual comps or neighborhood boundaries which are used in the AVM. This kind of involvement is analogous to what happens in a shirt factory, where the owners are not themselves involved in the physical operations required to fabricate the shirts. They may buy the machines, hire the workers, and pay a designer, but, after that, shirts come out the other end without any involvement on their part. And yet, the factory was their idea, the shirts that come out are their shirts, and they have a right to make a profit from the shirts. The AVM case is no different: the broker contracts with CA, licenses the software and virtual server, and the valuations that come out of the AVMs are the broker s valuations, for which they have a right to make a profit. Why should these brokers make money off of other brokers listings and work? Brokers make money off other brokers data and work every time they use the MLS. This is identical to the examples of BPOs, CMAs, and other long-accepted uses. Who is CA and can they be trusted with our MLS data? CA is not an outsider swooping in to make a quick buck, like certain paper brokers. Dr. Sklarz and his team are industry veterans who have been around for thirty years. Dr. Sklarz s and Dr. Norm Miller s 1986 paper on housing price prediction is one of the seminal works on using MLS based market Copyright 2014 Clareity Consulting. All Rights Reserved. Page 5

8 indicators to predict the future direction of real estate markets. Their 1987 paper on Pricing Strategies was the first discussion of using AVMs to optimally price new listings. Over the past fifteen years, Dr. Sklarz and his team have worked with Prudential Locations Real Estate, FNIS, and Fidelity National; they also provided the underlying AVMs and analytics for Cyberhomes, which was acquired by RPR. The source of the hubbub surrounding CA has nothing to do with trust in CA, but rather the tension of brokers creating and delivering AVMs to lenders through a technology partner rather than through traditional manual processes. This is an example of technology marching forward and enabling more efficient and accurate AVMs which everyone can agree is good for the real estate industry. CA software processes MLS data on behalf of the broker for the specific use of AVMs and market analytics. The company has shown that it will abide by the rules of the industry and be contractually obligated to use the MLS data for only the specific purposes agreed to. We can t do this because our MLS has an exclusive arrangement for the data for this purpose. The definition of MLS disseminated by NAR nowhere includes the words collective bargaining. An MLS may be a membership organization that buys services on its members behalf, but unless the MLS has the explicit agreement of its members to become parties to an agreement, it cannot subject its participants to contracts that it negotiates for itself. Its broker participants are not parties to its contracts. An MLS may contract with an AVM provider itself, but it cannot prevent its broker-members from contracting with other such services. An MLS restraining its members in this way may face questions from antitrust regulators, who already have a watchful eye on the real estate data and AVM markets witness the FTC s scrutiny of the recent acquisition of Dataquick by CoreLogic. Brokers have a right to contract with AVM providers irrespective of whether their MLS does or regardless of any exclusive relationships those MLSs may have entered into. Is the Collateral Analytics arrangement exclusive to The Realty Alliance? No. CA has a preferred relationship with TRA members, but it s up to the individual broker to decide if they choose to participate in the program. Additionally, TRA membership does not have national coverage in every market, so CA works with brokerage firms that are not TRA members in those markets and others where a TRA broker decides not to participate in the AVM program. What other opportunity is there for non-tra brokers to participate in broker valuations? Assuming the arguments in this paper are accepted by NAR and the MLSs, all brokers are free to innovate and compete by providing property valuations for financial institutions. Smaller brokerages might have difficulty achieving the scale and process needed to compete for the business with national lenders and financial institutions, but there is still plenty of opportunity to innovate and compete locally or regionally. Copyright 2014 Clareity Consulting. All Rights Reserved. Page 6

9 Doesn t this legitimize paper brokers who have taken advantage of our VOW agreement in the past to sell AVMs to lenders? Not at all. This is only about allowing actual Participants to properly license and obtain a feed for data in order to create and sell the valuations. Brokers that sign up for your MLS without any intent to list or sell real estate are not Participants, as per previous NAR determinations. What s Happening in May 2014? A recommendation is before NAR to modify its MLS Policy to make it clear that broker-produced AVMs are a valid use of MLS data and to require local MLSs to provide a data feed for this purpose. The work that has been done this year by the MLS Technology and Emerging Issues Advisory Board on behalf of all brokers has produced a recommendation for the full MLS Committee to consider and approve during NAR s May meetings in Washington, D.C. The recommendation at this point is: Option #1: Participants or their affiliated licensees shall not reproduce any MLS compilation or any portion thereof, except in the following limited circumstances: Participants or their affiliated licensees may reproduce from the MLS compilation and distribute to prospective purchasers a reasonable number of single copies of property listing data contained in the MLS compilation which relate to any properties in which the prospective purchasers are or may, in the judgment of the participant or their affiliated licensees, be interested. Reproductions made in accordance with this rule shall be prepared in such a fashion that the property listing data of properties other than that in which the prospective purchaser has expressed interest, or in which the participant or the affiliated licensees are seeking to promote interest, does not appear on such reproduction. Nothing contained herein shall be construed to preclude any participant from utilizing, displaying, distributing, or reproducing property listing sheets or other compilations of data pertaining exclusively to properties currently listed for sale with the participant. Any MLS information, whether provided in written or printed form, provided electronically, or provided in any other form or format, is provided for the exclusive use of the participant and those licensees affiliated with the participant who are authorized to have access to such information. Such information may not be Copyright 2014 Clareity Consulting. All Rights Reserved. Page 7

10 transmitted, retransmitted, or provided in any manner to any unauthorized individual, office, or firm. None of the foregoing shall be construed to prevent any individual legitimately in possession of current listing information, sold information, comparables, or statistical information from utilizing such information to support an estimate of value valuations on a particular property properties for a particular clients. Any MLS content in data feeds available to participants for real estate brokerage purposes must also be available to participants for valuation purposes, including automated valuations. MLSs must either permit use of existing data feeds, or create a separate data feed, to satisfy this requirement. MLSs may require participants who will use such data feeds to pay the reasonably estimated costs incurred by the MLS in adding or enhancing its downloading capacity for this purpose. However, only such iinformation that an association or associationowned multiple listing service has deemed to be nonconfidential and necessary to support the estimate of value may not be reproduced and attached to the report used as supporting documentation. Any other use of such information is unauthorized and prohibited by these rules and regulations. Option #2: Participants or their affiliated licensees shall not reproduce any MLS compilation or any portion thereof, except in the following limited circumstances: Participants or their affiliated licensees may reproduce from the MLS compilation and distribute to prospective purchasers a reasonable number of single copies of property listing data contained in the MLS compilation which relate to any properties in which the prospective purchasers are or may, in the judgment of the participants or their affiliated licensees, be interested. Nothing contained herein shall be construed to preclude any participant from utilizing, displaying, distributing, or reproducing property listing sheets or other compilations of data pertaining exclusively to properties currently listed for sale with the participant. Any MLS information, whether provided in written or printed form, provided electronically, or provided in any other form or format, is provided for the exclusive use of the participant and those licensees affiliated with the participant who are authorized to have access to such information. Such information may not be transmitted, retransmitted, or provided in any manner to any unauthorized individual, office, or firm. None of the foregoing shall be construed to prevent any individual legitimately in possession of current listing information, sold information, comparables, or Copyright 2014 Clareity Consulting. All Rights Reserved. Page 8

11 statistical information from utilizing such information to support an estimate of value valuations on a particular property properties for a particular clients. Any MLS content in data feeds available to participants for real estate brokerage purposes must also be available to participants for valuation purposes, including automated valuations. MLSs must either permit use of existing data feeds, or create a separate data feed, to satisfy this requirement. MLSs may require participants who will use such data feeds to pay the reasonably estimated costs incurred by the MLS in adding or enhancing its downloading capacity for this purpose. However, only such iinformation that an association or associationowned multiple listing service has deemed to be nonconfidential and necessary to support the estimate of value may not be reproduced and attached to the report used as supporting documentation. Any other use of such information is unauthorized and prohibited by these rules and regulations. In both options, the MLS will be required to provide a data feed for valuations, including automated valuations, and has the right to charge the broker reasonable fees to cover the cost of the data feed. Conclusions The one constant we know is change, and technology will continue to leap past our business practices and policies. Innovation is everywhere; we need to embrace it rather than resist it, and to think of reasonable solutions that benefit consumers and brokers alike. Other new tools and technologies will arise, and brokerages business models will continue to evolve in response to consumer needs and today s cloud-based computing world. Brokerages will also continue to need the support not resistance of MLSs to serve next-generation customers and clients. Unfortunately, MLS operators are frequently placed in the difficult position of determining valid uses of MLS data and must decline data requests by companies masquerading as brokerages. However, when brokerages that actively facilitate the sale and purchase of property request a data feed to prepare valuations, how can an MLS say no due to technical advances in valuation process and technique? If an MLS says no to cloud-based AVMs, how far back in technological time does it want the broker to operate? Will the MLS mandate that broker can only use Excel or AVM software running in their bricks-and-mortar back office? There have been and will continue to be companies that scrape MLS data, hack MLS and broker systems, or steal data through the front door by illegally using an agent or broker s credentials. REDPLAN ( a non-profit association formed in 2013 to help protect the real estate industry s intellectual property, has already received reports of companies that trick an MLS user into sharing his or her username and password by promising free reports. These companies then resell MLS data on the black/gray market and create any derivative products they can find buyers for. This type of data misappropriation is in stark contrast to MLS participants who are appropriately using modern technology to provide valuations to bona fide customers. Copyright 2014 Clareity Consulting. All Rights Reserved. Page 9

12 Clareity strongly supports brokers in their use of MLS data for modern home valuations and real estate analytics, and the progressive work and thinking of the MLS Technology and Emerging Issues Advisory Board. About Clareity Consulting Founded in 1996, Clareity continually strives to provide our clients an independent and unique perspective. Due to our extensive involvement and interaction across the entire real estate industry, we have a finger on the pulse of the industry. Clareity has successfully executed a vast array of consulting projects for our clients, related to: Development and analysis of RFPs for MLS systems, public records, broker systems and transaction management systems Public speaking and presentations Strategic planning Information security and business risk management assessments VOW and IDX compliance audits Regionalization and data share consulting Mergers and acquisitions and strategic alliances New product marketing and business plans Product integration specifications Conference planning and content development Competitive analysis Contract negotiation Executive and technical staff recruitment Project management and implementation assistance Market research including agent, broker, and staff surveys as well as onsite focus groups For more information please contact: Gregg Larson Matt Cohen Clareity Consulting Clareity Consulting Scottsdale Minneapolis Gregg.Larson@clareity.com Matt.Cohen@clareity.com Or visit Copyright 2014 Clareity Consulting. All Rights Reserved. Page 10

13 Appendix 1: The Realty Alliance Letter to NAR 27 January 2014 Mr. Robert Bailey MLS Technology and Emerging Issues Advisory Board of the Multiple Listing Issues and Policies Committee National Association of Realtors 430 North Michigan Avenue Chicago, Illinois Re: NAR Policy on MLS Participants Use of MLS data to Create Automated Valuation Models (AVMs) Dear Mr. Bailey: The Realty Alliance (TRA) is a network of real estate brokerage companies located throughout the United States and Canada. Each U.S. member of TRA is an NAR member and an MLS Participant, and nearly all of the MLSs in which TRA members participate are owned by associations of Realtors, and subject to the National Association of Realtors Multiple Listing Policy (NAR MLS Policy). The Realty Alliance represents more than 100,000 Realtors, and we are confident the vast majority of NAR members share our view. The purpose of this letter is to assist the NAR Multiple Listing Issues and Policies Committee and/or any related subcommittee equivalents should they consider clarifying NAR s MLS policy to expressly prohibit MLSs from denying MLS Participants downloads or data feeds of MLS data, including active, sold and offmarket data, that Participants may use to generate automated valuation modeling estimates of value (AVMs) on properties using software licensed from a third party and delivering the AVM results to financial institutions in return for compensation independent of a real estate sales commission. THE ISSUE TRA believes current NAR MLS Policy already permits MLS Participants to use MLS data to create AVMs using third-party software and deliver the AVM results to financial institution end users for a fee separate from any brokerage commission that may be earned on the sale of the subject property. Since the use of MLS data for this purpose is a permitted use under NAR s MLS Policy, MLSs subject to that Policy cannot Copyright 2014 Clareity Consulting. All Rights Reserved. Page 11

14 effectively deny MLS Participants the ability to engage in this permitted use of MLS data by refusing Participants and their technology service providers to use the MLS VOW data feed to create the AVMs. Nevertheless, certain MLSs have taken the position that the only uses that MLS Participants may make of MLS data downloaded or accessible through MLS data feeds are (1) to support the Participants IDX and VOW sites, or (2) for the Participant s use in marketing the property included in the MLS database compilation. Since generation and delivery of AVMs to financial institution end users is not a, strictly speaking, an IDX or VOW use of the MLS data, nor are the AVMs ordinarily being delivered to the financial institution end users in the course of marketing the property that is the subject of the AVMs, NAR s current MLS Policy does not require MLSs to permit Participants to use MLS data downloaded or accessible through a data feed from the MLS computerized database compilation to create AVMs for as described above. It is unfortunate that we are forced to have to make this case, but we hope this is helpful. Because of this disagreement among MLSs and brokers on the proper interpretation of NAR MLS Policy, should the NAR MLS Issues and Policies Committee amend the NAR MLS Policy regarding this issue, TRA believes the right thing to do is for amended policy wording to make clear that MLSs must provide MLS Participants with a source of MLS data that the Participants may use in conjunction with their thirdparty technology and software providers to generate AVMs for the purposes outlined above. The reasons TRA believes this clarification is based on current NAR MLS Policy are set forth below. BACKGROUND TRA has created a program through which brokers (both TRA members and non-tra members) may license a third-party real estate analytics company s proprietary software that creates AVMs and other real estate market analyses by applying algorithms to information contained in automated databases of information about closed real estate transactions and properties that are, or have been, listed for sale. Brokers who choose to participate in this program (collectively referred to as Participants ) use the licensed AVM software for two permitted uses, both of which require the software to operate on a database of real estate information that includes MLS data of all types (active, sold, pending and off-market) that the Participants are entitled to utilize as bona fide participants in MLSs. First, the licenses permit the Participants to use the software to create certain property valuation and market analytics reports appropriate for use in the Participants business of marketing real estate to potential buyers and sellers. These analytic reports resemble traditional comparative market analyses or CMAs that Participants supply to customers and clients interested in buying or selling a particular property. Use of MLS data to create CMAs is a long recognized permitted use of MLS data by MLS Participants. Second, the licenses permit the Participants to use the software to fulfill orders from financial institution end users (collectively referred to as End Users ) for AVM reports on properties located in the Participants market areas. In furtherance of this permitted use of the software, the AVM software licensor will also perform a fulfillment function (the Clearinghouse ) for End Users orders for the Participants AVM reports. End Users desiring an AVM Report will use a unique password and user ID to log into the Clearinghouse website managed by the software licensor for the benefit of the Participants. Once logged in, the End User will specify one or more subject properties for which the End User is requesting an AVM report. Copyright 2014 Clareity Consulting. All Rights Reserved. Page 12

15 The Clearinghouse software will then identify the Participant that participates in the MLS that maintains the MLS data necessary to create the AVM report(s) on the subject property identified by the End User. The Clearinghouse will then instruct the AVM software to generate the AVM report(s) requested by the End User and return the AVM reports to the End User by as PDF attachments, or as an Excel spreadsheet. The AVM reports, designed in conjunction with Participants, returned to the End Users will be branded with the logo of the Participant who participates in the MLS whose MLS data was used to generate the AVM. The End Users will also make payment through the Clearinghouse for the AVM reports delivered to them. These fees will then be divided among (1) the Participant(s) whose AVM reports were delivered to the End User, (2) software licensor as a license fee for use of the AVM and Clearinghouse software, and (3) TRA for administration of the Participant network. TRA believes that NAR MLS Policy permits the above described use of MLS data by MLS participants, and likewise requires MLSs to provide an MLS data feed to the Participants or their technology service providers for the following reasons: EXECUTIVE SUMMARY The Participants are permitted under applicable state and federal laws governing real estate appraisal practices to provide AVM reports to End Users, so long as the Participants clearly disclose that the AVM reports are automated estimates of value generated solely by computer software programs operating on real estate information databases, and are not to be relied upon as human generated appraisals as defined under the Uniform Standards of Professional Appraisal Practice (USPAP), Broker Price Opinions (BPOs), or Competitive Market Analyses (CMAs) that are expressions of professional opinions about the values, or the prices at which properties should be offered for sale or acquisition. TRA contends that NAR s MLS, VOW and Professional Standards Policies confirm that Participants may use MLS data to create and deliver AVM Reports to financial institution End Users using computer hardware and software supplied by third party licensors. That being the case, MLSs must therefore facilitate that use by either providing an MLS data feed, permitting Participants to download the MLS data for such use, or allowing the MLS VOW data feed to be used not only for the purposes set forth in NAR s VOW Policy, but also for use in generating AVMs for delivery to End Users. This conclusion is further supported by provisions of NAR s VOW Policy that permit MLS participants to use MLS data to create and deliver CMAs to customers and clients through a VOW. While an AVM report is legally distinct from a CMA, the AVM report is an estimate of value of real property, which NAR MLS and Professional Standards Policy expressly authorizes MLS Participants to create using MLS data. Pursuant to the Participants AVM software licenses, the AVM reports will be delivered through the Clearinghouse to End Users as products of the Participants. In addition, the license agreements require that the MLS data used to generate the AVM reports must at all times reside on computer servers that are subject to the control of the Participant, although the hardware may be supplied by a third party cloud services provider. The license agreements further prohibit the software licensor from making the MLS data accessible to any third parties; therefore, the MLS data will never be accessible to End Users, other than the minimal amount of MLS data contained on the actual AVM reports. The End Users are in turn prohibited from using the AVMs, or the data contained on the AVMs, for anything other than internal collateral valuation or risk management purposes. Copyright 2014 Clareity Consulting. All Rights Reserved. Page 13

16 DISCUSSION Legal Status of AVM Reports AVM reports are calculations of a property s current estimated market value created by computer software operating on electronic databases of real property records. The software locates the property data for the subject property, identifies the best comparable transactions, and performs appropriate calculations to determine an estimate of value. The AVM report presents the valuation together with certain physical characteristics of the subject property, and a summary of the comparable properties that support the valuation. A copy of the AVM report is then delivered electronically to the requesting party. AVM reports are not appraisals as that term is defined under USPAP. USPAP is promulgated by the federally chartered Appraisal Standards Board. Most federally related loans secured by real property must be supported by appraisals that meet USPAP standards. A USPAP compliant residential appraisal is prepared on a Uniform Residential Appraisal Report (URAR) form, and must be performed by a state licensed or certified appraiser who is subject to USPAP standards. It is illegal for an unlicensed person to prepare a USAP defined appraisal. Neither an AVM report nor a Broker Price Opinion (or BPO ) is an appraisal as defined by USPAP. A BPO is sometimes referred to as a Competitive Market Analysis or CMA. USPAP defines an appraisal as an opinion of value of a parcel of real estate that is rendered by a state licensed or certified appraiser. BPOs, on the other hand, are performed by real estate brokers or agents, most of whom are not licensed real estate appraisers. Unlike a USPAP appraisal, which is typically performed by an appraiser for a mortgage lender, a BPO is normally generated by a real estate broker for a seller who is determining the price at which to list a property for sale, or for a buyer who is determining the price to offer to purchase a property. Because a BPO is a judgment about the price at which offers to buy or sell a property should be made, rather than a judgment about the value of a property, a BPO is not considered an appraisal for USPAP or state real estate appraiser license law purposes. Certain mortgage lenders, however, request real estate brokers to perform BPOs for the purpose of estimating the value of a property without any intention of listing the property with the brokers performing the BPOs. Some state real estate appraiser license laws prohibit a real estate broker or agent who is not also a licensed or certified appraiser from performing a BPO for a mortgage lender or other lien holder that is not incident to the potential listing of the subject property. While also an estimate of value of a real estate parcel, an AVM report is not a URAR appraisal or a BPO for the purposes of USPAP or state real estate appraiser license laws. Both a BPO and a URAR appraisal are the results of a broker s or appraiser s selection and analysis of real estate data on which to base the broker s or appraiser s professional judgment about the price or value of the subject property. An AVM report, on the other hand, is not the result of any human analysis or judgment. It is a computer generated calculation performed by software interacting with an automated real estate database compilation. Because an AVM report does not include any human judgment or analysis, it is not considered an appraisal or a BPO and may not be represented as being the equivalent of an appraisal or BPO to any user or institutional customer. The AVM reports delivered by Participants to End Users through the Clearinghouse include clear Copyright 2014 Clareity Consulting. All Rights Reserved. Page 14

17 and conspicuous disclosures that the AVM reports are not appraisals or BPOs, and cannot be relied upon as such. Notwithstanding its limitations, an AVM report may be used by financial institutions for purposes that do not involve the valuation of property as collateral for a mortgage loan. For example, AVM reports may be used for quality control purposes to determine if URAR appraisals performed for the institution are within acceptable ranges of accuracy. AVM reports may also be used to monitor the value of the collateral securing promissory notes that are in a pool of mortgage backed securities to assess the quality of the security, or predict the likelihood of borrower default. Because they are not the product of human analyses, AVMs are also not susceptible to human error or manipulation, which is why they are used to double check human generated appraisals or BPOs. NAR s Code of Ethics Permits Realtors to Perform Property Valuations Other Than Incident to a Listing Opportunity or to Advise a Buyer Client. The NAR Code of Ethics expressly permits Realtors to provide property valuations independent of listing or selling property under certain specified conditions. The NAR Delegate Body and Board of Directors amended Article 11 of Realtors Code of Ethics and Standard of Practice 11-1 at NAR s 2009 Annual Convention to address Realtor preparation of property valuations other than incident to a listing presentation or in support of a customer s or client s attempted acquisition of a property. The amended Standard of Practice 11-1, which took effect on January 1, 2010, provides: When Realtors prepare opinions of real property value or price, other than in pursuit of a listing or to assist a potential purchaser in formulating a purchase offer, such opinions shall include the following unless the party requesting the opinion requires a specific type of report or different data set: 1) identification of the subject property 2) date prepared 3) defined value or price 4) limiting conditions, including statements of purpose(s) and intended user(s) 5) any present or contemplated interest, including the possibility of representing the seller/landlord or buyers/tenants 6) basis for the opinion, including applicable market data 7) if the opinion is not an appraisal, a statement to that effect Standard of Practice 11-1 was adopted for the express purpose of setting standards by which Realtors can create estimates of value for monetary compensation other than incident to a listing or purchase of the subject property. More recently, NAR has, through its Realtor University, published a training course to instruct Realtors on how to supplement their income by performing BPOs for third party valuation services companies. This training course demonstrates how to create BPOs using MLS data. See Standard of Practice 11-1 clearly permits a Realtor ethically to create a BPO other than incident to a listing presentation for a buyer client. While an AVM report is not a BPO, the AVM report is a valuation of real Copyright 2014 Clareity Consulting. All Rights Reserved. Page 15

18 property. Therefore, Standard of Practice 11-1 supports the conclusion that a Realtor may supply AVM reports to interested third parties provided that the requirements of Standard of Practice 11-1 are met. NAR has Recognized the Legitimate Role of AVMs in the Independent Valuation of Real Property In February of 2012, NAR published its Responsible Valuation Policy statement. In that Policy NAR supports independent valuations of real property and states that when Realtors provide non-appraisal opinions of value they are ethically obligated to do so in an independent and objective manner by citing Article 11 of the Realtors Code of Ethics and Standard of Practice NAR s Responsible Valuation Policy also addresses AVM reports. NAR s Policy acknowledges that AVMs are often used by originators or secondary market investors to determine the collateral worth of mortgages secured by a consumer s principal dwelling. NAR s Policy commentary on AVMs goes on to state that individuals or companies that create AVMs should ensure that AVMs: 1. Protect against the manipulation of data, including disassembly and redistribution without explicit authorization 2. Employ appropriate quality control measures, including disclosure of a confidence score calculated using a statistical methodology, such as forecast standard deviation 3. Utilize only data which has been explicitly licensed and authorized 4. Avoid conflicts of interest 5. Require random sample testing and reviews 6. Not be used as the principle method of valuation in mortgage origination NAR s Professional Standards Policy, therefore, acknowledges that Realtors may ethically create nonappraisal estimates of value that adhere to the provisions of Standard of Practice NAR Responsible Valuation Policy further acknowledges that AVM reports may legitimately be used by originators or secondary market investors to determine the collateral worth of a mortgage secured by a consumer s principal dwelling provided that such AVM reports conform to the criteria set forth in that Policy. When generating AVM reports for End Users through the Clearinghouse utilizing the licensed AVM software Participants will comply in all respects with Article 11 of the Realtors Code of Ethics and Standard of Practice The Participants AVM reports will also conform to the criteria for permissible AVM reports set forth in NAR s Responsible Valuation Policy. NAR MLS Policy Permits Participants to Use MLS data to Generate AVM Reports The NAR MLS Policy also expressly authorizes MLS Participants to use MLS data to generate estimates of value for real property. NAR s MLS Policy defines an MLS to include serving as: a means by which information is accumulated and disseminated to enable authorized participants to prepare appraisals, analyses, and other valuations of real property for bona fide clients and customers. Copyright 2014 Clareity Consulting. All Rights Reserved. Page 16

19 The NAR Model Rules for MLSs that are owned or operated by associations of Realtors includes Rule 12.2 governing the use of the MLS copyrighted compilations, which MLSs are required to adopt. Rule 12.2 states in part that: None of the foregoing shall be construed to prevent any individual legitimately in possession of current listing information, sold information, comparables, or statistical information from utilizing such information to support an estimate of value on a particular property for a particular client. However, only such information that an association or association-owned multiple listing service has deemed to be nonconfidential and necessary to support the estimate of value may be reproduced and attached to the report as supporting documentation. Any other use of such information is unauthorized and prohibited by these rules and regulations. Emphasis added. NAR has also issued interpretations of its current VOW Policy that state that Realtors operating VOWs may use MLS sold data to support CMAs provided to customers or clients, whether through a VOW or otherwise. To assist MLSs in implementing the revised VOW Policy, NAR has issued a series of answers to Frequently Asked Questions (FAQs). Question 5.8 of NAR s VOW Policy FAQs states as follows: Q 5.8 Where sold data is not publicly accessible and the MLS prohibits sold data from being displayed/accessible on VOWs under optional Rule 19.15(f), the rules require an equivalent requirement must be imposed on Participant s use MLS Listing Information in providing brokerage service through all other mechanisms. What requirement must be imposed on use of sold data in the bricks and mortar context? Does that mean that a broker may not use and disclose sold listings in connection with CMAs or other advice to a client or customer either in their offices or via their VOWs? NAR s Answer to Question 5.8 is as follows: If the MLS chooses to prohibit display of sold data on the VOW (or, for that matter, expired, withdrawn or pending listing data), Participants may still provide clients and customers with a limited number of such listings in connection with providing brokerage services, including CMAs. This is permissible both on a VOW and in the office. Emphasis added. The NAR VOW Policy permits an MLS operating in a state in which sales price information is not on the public record to refuse to permit sold data from being displayed on a VOW. But if an MLS makes such an election, it must also forbid the equivalent use of sold data in a bricks and mortar setting. The purpose of Question and Answer 5.8 is to make clear that, even in those circumstances in which an MLS has prohibited the display of sold data on a VOW, an MLS must still permit an MLS Participant to use sold data to deliver CMAs to customers or client, including by electronic means through the MLS participant s VOW. According to NAR s VOW Policy, an MLS cannot prohibit a VOW operator from providing VOW registrants with CMAs (or BPOs) through a VOW, so long as the VOW operator only provides the customer or client Copyright 2014 Clareity Consulting. All Rights Reserved. Page 17