Two
more
states
—
Illinois
and
Hawaii
—
have
now
joined
the
push
to
restrict
private
residential
listings,
signaling
that
Wisconsin’s
newly
enacted

transparency
law
and
Washington’s

advancing
legislation
are
just
the
beginning
of
state
legislative
action.

Illinois’

HB
4964
follows
the
Wisconsin
model,
requiring
public
marketing
within
one
business
day
of
signing
a
listing
agreement
unless
the
seller
opts
out
in
writing.
 Hawaii’s

HB
2559
mirrors
Washington’s
stricter
approach,
prohibiting
marketing
to
a
limited
or
exclusive
group
without
concurrent
public
exposure,
with
only
narrow
safety
exceptions.

To
most
in
the
industry,
this
is
just
another
chapter
in
the
cold
(and
occasionally
hot)
war
between

Zillow
and

Compass
over

private
listings
and
who
controls
access
to
housing
inventory.
That’s
probably
an
accurate
read
–
but
it’s
also
incomplete.

The
deeper
reality
is
that
states
have
always
had
the
authority
to
regulate
how
real
estate
is
marketed.
 The
constitutional
label
for
this
is
“police
powers”
—
the
states’
broad
ability
to
govern
the
conduct
of
licensed
professions
in
the
name
of
consumer
protection.
 And
that
authority
is
far
more
expansive
than
one
may
realize.

How
expansive? Several
states
have
banned
buyer-broker
commission
rebates
for
years,
and
courts
have
repeatedly
upheld
those
restrictions,
even
while
acknowledging
they
may
be
anti-consumer
or
anticompetitive.
When
a
rule
is
framed
as
governing
professional
conduct,
courts
defer
heavily
to
state
legislatures.

For
decades,
property
listings
have
been

de
facto
regulated
by
NAR
policies,
MLS
participation
and
platform
syndication.
As
long
as
that
framework
held,
states
stayed
out
of
it. 
The

Sitzer/Burnett
verdict,
the
NAR
settlement
and
the
rise
of
portal
competition
changed
that
calculus
entirely. Industry
lobbying
may
be
behind
these
first
legislative
moves,
but
state
legislatures
just
got
reminded
how
much
power
they
have
to
write
the
rules
of
the
game. 

Will
federal
action
override
this?
Perhaps,
but
not
nearly
as
much
as
some
might
assume.
After
Dodd-Frank,
the
federal
government
effectively
nationalized
the
rules
for
mortgage
lending.
Even
then,
states
never
lost
control
over
who
gets
licensed,
what
they
must
do
to
stay
licensed
and
how
they
conduct
business
day-to-day.

Going
forward,
it
wouldn’t
be
surprising
to
see
more
states
step
into
the
fray,
because
they

can,
and
because
housing
is
far
too
hot
a
political
issue
to
ignore.

Anthony
V.
Mannino,
Esq.

is
the
CEO
of
Dual
Mind
Strategies.

This
column
does
not
necessarily
reflect
the
opinion
of
HousingWire’s
editorial
department
and
its
owners.

To
contact
the
editor
responsible
for
this
piece:



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