Notorious R.O.B.

There are really very few voices in the RE.net I respect more than Russell Shaw‘s. I mean, this is a guy who not only talks the talk, he actually walks the walk. His insights and ideas are great in and of themselves, but they are that much more credible in my eyes because he’s a tremendously successful practitioner of the craft as well.

So when Russell speaks on something I’ve written, and criticizes it, that criticism is something I take seriously. He writes:

In some of the posts on various blogs and also on Inman there has been discussion of IDX vs. VOW and how perhaps a national MLS is needed and that some fantastic company using really wonderful technology is going to attract loads and loads of business, pay the agents less and sort of take over. I contend that if such a thing were possible it would have already happened. Zip or Redfin would be making a ton of money (instead of endlessly feeding their companies with investor capital that is not likely to ever come back to them). I don’t think it makes any difference to any big company if only IDX or only VOW is used. About the only people who it will ever make a significant difference to are those agents (not “companies”) who primarily work buyers. They use other people’s listings (via IDX or VOW) as bait to attract buyers who aren’t working with any agent yet.

Desk-fee agents are not only not going away, they ARE the future of our industry. Don’t believe it? Look at the actual trends for the past decade. Our industry is shifting from a totally broker-centric model to 100% companies. Right now, in most parts of the country it is the big national 100% companies who dominate (in terms of numbers of agents). Take a closer look at where 100% started (Phoenix) and you see a very different picture: most of the agents are with 100% companies and the “traditional” companies have changed their splits to the point that they may as well be 100% companies. But it is the less well-known 100% companies that have the largest number of agents. Hint: they charge less. A lot less. My prediction is that these companies and teams of agents (with a rainmaker, mentor) are the future of our business. We will have fewer agents and I believe that is a good thing. A very good thing.

My only defense to this powerful line of criticism is that “past performance is no guarantee of future results.” Let’s get into depth a bit.

IDX, VOW, and Bait

I think Russell is surely correct when he says that buyer agents use other people’s listings, whether over IDX or VOW, to attract buyers. But I submit that if you go a level deeper into this “bait” concept, the difference between IDX and VOW are significant, and that the incentives as currently structured point the way towards a very different future.

It is worth noting that very knowledgeable people think I’m nuts. I say, time will tell.

But this whole discussion is being driven at base by the continued shift of consumers to the Internet. That trend is not likely to reverse, as the demographics of the consumer continually changes.

And while Russell is right that buyer agents use other people’s listings as bait, I believe that the trend even for sellers is to look at effective online marketing programs by the listing agent. I mean, could you even walk into a listing presentation today without an integrated online marketing strategy?

So whether you’re talking about bait to attract buyers, or bait to get sellers to list with you, you’re still talking about the Internet and effective online marketing.

Now, throw into this volatile, changing environment these facts:

1. IDX, while tremendously successful, is a pain to implement due to variety of local rules.
2. VOW, while tremendously open, has that “signup” provision that is a major barrier to consumer engagement.
3. Only public facing MLS websites (and possibly Realtor.com) are free of either restriction, under the NAR-DOJ settlement.

What is the likely outcome?

To me, it appears that the future looks something like this:

• Public-facing MLS websites become the primary consumer destination sites, with perhaps Realtor.com (depending on how the NAR-DOJ settlement is interpreted vis-a-vis Realtor.com) being the primary national real estate portal (possibly to each MLS site).
• Brokers (and agents) have enormous marketing advantages if they can convince consumers to signup with them in some way.
• Ergo, brokers (and agents) who have extremely robust, powerful, and consumer-useful CRM systems married to an effective, consumer-friendly, and content-rich online marketing strategies win the battle for consumers. And winning that battle leads to wining the listings battle, as those brokers (and agents) are able to tell the seller, “We have a database of 95,000 homebuyers, married to our awesome website, and an integrated marketing approach.”

Perhaps it won’t happen this way, but I think the logic is valid.

End of Desk Fee Brokerage?

For what it’s worth, I didn’t come up with the title for my Inman interview. I’m not sure if desk-fee brokerage is going the way of the dodo bird. What I do wonder about, however, is what stops a Third Party Platform (such as Trulia or Homegain or whoever is left standing) from getting brokerage licenses, and leveraging their overall lower cost of operations (from economies of scale) and rolling out a national, desk-fee model, but featuring lower fees for all services that desk fee agents currently receive from their brokerages.

Sperry Van Ness has tried to do this in commercial real estate to some success, and that’s a business that isn’t all that friendly to a desk-fee model. Why it wouldn’t work in residential is something I’m waiting to find out.

Furthermore, as I mentioned above, what happened in the past is not a great indication of what is likely to happen in the future. At some point, especially in what appears to be a historic down market, the extremely thin profit margins of these various brokerages are going to catch up to them. Do they maintain the 100% desk fee model that is yielding less than investment into Treasuries? Or do they at some point decide it’s not worth all the hassle and the risk?

The Connection to Brand

What’s even more interesting is that Russell points out the unfortunate truth: real estate brands have lost so much equity, so much brand identity, that most of them don’t stand for anything:

Take what is currently, factually, the really biggest real estate company in the world, Realogy: other than Sotheby’s what brand do they have that matters? Try none for an answer. What meaningful difference does the general public or even the agent public see between Century 21, ERA, Better Homes & Gardens, or Coldwell Banker (just to name a few)? Which one of those is a “good brand”? (yes, yes, I know, Coldwell Banker is supposed to be their “premier brand”)

Is Coldwell Banker a better brokerage firm to the public than Century 21? Do people across the nation think to themselves, “It would be so great if we could buy our next home from a Coldwell Banker agent”? Ever? Does anyone, anywhere, ever think that? How about, ERA? Does anyone say,”I only want to do business with an ERA agent”? If not, what are those “brands” worth? Not much. Why? They don’t stand for anything. To matter, a brand must mean something in the mind of the public and few national real estate firms have ever done that and then managed to hold on to their position.

So, to start off, general agreement on all points. The big brands in real estate have lost most, if not all, of their brand equity.

Brand awareness is not the same thing as brand equity. So for Century 21 to claim that they are #1 in brand awareness, as they recently did, is actually somewhat meaningless unless the brand itself is connected to a real identity.

However, brand awareness is important. It takes years, decades, and really serious money to build up brand awareness in the minds of consumers. To even get people to recognize a particular logo and see it as being familiar takes real effort. And it does provide tangible benefits. In the case of C21, it meant that at least in a survey, consumers responded that they were most likely to choose C21 to buy or sell a house.

Furthermore, if you have a familiar brand, it takes far less effort to turn it around and give it a real identity. It isn’t easy, but it is doable.

What Russell does not take into account, however, in the brand story is how the brand equity was lost. Perhaps the full story will require far more study and research than my little blogpost here, but I submit that the main way that brand equity was lost by Big Brands was through loss of control over the agents.

Best Buy can put out all the TV ads in the world showing smiling, friendly salespeople talking about some sweet holiday story. I set foot into a local Best Buy, deal with one Best Buy salesperson, and all of that branding effort is wiped out if the salesperson is rude, surly, and a moron. It’s happened to me often enough that I no longer shop at Best Buy unless I absolutely must.

Same thing applies to retail. Bloomingdales was once seen as the creme de la creme of American retail — a true luxury with incredible customer service. Yeah… have you set foot in a Bloomingdale’s recently? Do you feel catered to? Special? Luxurious?

All the branding in the world cannot overcome a bad customer touchpoint, and the people who wear the brand is quite possibly the single most important customer touchpoint.

Take a look at the care with which service-driven industries, such as luxury hotels, select, train, and monitor their frontline staff from the check-in clerk, to the over-the-phone reservation people. If I feel that I’ve been treated less than perfectly at a Westin, I’m pretty sure I can get that employee fired. But at a Best Western? I seriously doubt it.

So in the world of real estate, which big brand really enforces brand discipline down through the ranks to the agent level?

For that matter, how many large brokerages — especially the 100% desk fee models — truly enforce brand message and brand discipline?

If the official brand statement is that “our agents are truly knowledgeable experts”, how many brokers fire agents who aren’t?  How many even test agents to see just how expert they are?

And the 100% desk fee models contributed directly to, and was simultaneously symptomatic of, that loss of control.  With a 100% desk fee model, the broker doesn’t care so much about the consumer, or his brand, except insofar as it would help him bring in agents who pay him fees.  The real customer is the agent, not the consumer.

Sort of tough to “control the agent” and “enforce brand discipline” when that’s the case.

The Gorilla Cometh

So when I predict the future coming of the Big Brokerage, it is based on certain fundamental assumptions and observations.

Brokers will not stay in a 3% profit business forever; either the profit has to go up, or they will get out.

We are currently at the tail-end of an agent-centric industry model pioneered by Remax.  The current shift is away from an agent-centric model towards a web-centric model, because the key to the whole industry is Who Holds the Consumer Relationship?

If Third Party Providers win that battle through superior technology, superior marketing, and superior web-based applications, then they will enable the “desk-fee’ing” of the entire real estate brokerage industry.  At that point, the brokerages might as well go out of business, because the agents don’t need you; they need the Third Party Providers far more.  This is the CoStar/Loopnet future of real estate.

What argues against this outcome is the simple fact that most Third Party Providers are losing money in a rough investment environment, and may not survive to see this beautiful future (for them).

If Brokers win that battle through real investment into technologies that enable a web-centric model, then they can and will absolutely reduce the cost of labor.  They have to in order to make back their investment on the one hand, and to raise the profitability of the business on the other.

What argues against this outcome is that most Big Brokerages do not yet seem to understand this, and in the current market, are likely to be very gunshy about investing in anything.

My current stance is that it is easier for the guys with the money — Big Brokerage — to make the investment, gain control over their agents, gain control over their brands, drive brand discipline through the ranks, and emerge far stronger than they ever have been, empowered by technology, than it is for the guys with the technology to find ways to make money.  Hence, I believe the 900-lb gorilla cometh.

But… I could be wrong.  And it could be the 900-lb bear that cometh instead.

(The agent, by the way, is simply not a player in this battle.  They don’t have the money, and don’t have the infrastructure.  They will use whatever tools are provided by whomever, and decide who the winner will be, but they themselves are not in this fight.)

-rsh

I think I might have fallen in love with Larson/Sobotka.  I haven’t the faintest idea who they are, but it looks like they combine some business consulting with legal work with something else involving MLSes and such.  Bears looking into more.

But they have done a great service for the RE.net by compiling a guide to the new VOW policy.  In fact, they call it a clearinghouse for the new NAR VOW rules, and I think it fits.  There’s a lot of depth here, and a lot of breadth.  Check it out in full.

For myself, I immediately zeroed in on this:

What a VOW is

For purposes of the DOJ/NAR settlement, a VOW is:

A web site, or feature of a web site, operated by a Broker or for a Broker by another Person through which the Broker is capable of providing real estate brokerage services to consumer with whom the Broker has first established a Broker-consumer relationship (as defined by state law) where the consumer has the opportunity to search MLS data, subject to the Broker’s oversight, supervision, and accountability. (See Policy Section I.1.) [Emphasis mine.]

Interesting.  The law-school training kicks in and I see at least three questions to be resolved, probably through litigation:

1.  What does “providing” mean?

2.  What sorts of activities constitute “real estate brokerage services”?  Is this governed by state regulations?  Or is this to be under some common law agency theories?

3.  If state law defines “Broker-consumer relationship”, then what to make of provisions like this one from Delaware?:

Entering a name and email address on an Internet or World Wide Web site is sufficient to establish a broker-consumer relationship for the use of that system, but does not in of itself create a broker-customer or client relationship for any other purpose.

Especially in light of the clause that reads, “capable of providing real estate services” in the NAR DOJ settlement, under Delaware law, there may be enough of a relationship created by entering a name and email address to use a VOW but not to take advantage of any of the real estate services provided.  Does that even make any sense?  Isn’t the display of property information itself a “provision of real estate services”?

Or does the NAR-DOJ settlement override Delaware law by operation of the Supremacy Clause?  Even when it specifically says state law controls definition of “Broker-consumer relationship”?

Heh.  I love regulations written by lawyers, don’t you?

But Larson/Sobotka has more riches in store for us:

• An IDX site is not a VOW. IDX is an MLS policy under which a brokerage firm participating in MLS grants permission to other brokers participating in MLS to advertise its listings on their web sites, in return for their permission to advertise their listings on its web site. IDX sites are governed by MLS IDX rules, which are entirely unaffected by the settlement. Note that a brokerage firm can operate both an IDX site and a VOW at the same location on the web. (For example, the brokerage can show the consumer some information on its IDX site but then require her to register to see the information available only through its VOW.)
• Zillow, Trulia, and other national aggregators and commercial distributors of listings are generally not VOWs. (Note that these sites are not IDX sites either, and the data feeds that some MLSs provide to them are not “IDX feeds,” as they are sometimes erroneously labeled.) These companies may receive listing data from brokers or MLSs, but display of those listings is subject to the agreements between the brokers or the MLSs and the aggregators. Neither the settlement, nor any of the policies imposed under it, applies to any of these types of sites. Note that if Zillow or one of these other sites were to become licensed as a brokerage firm, become a participant in an MLS, and actively assist consumers in buying or selling real estate (or both), it would be eligible to operate a VOW.
• MLS public consumer-accessible web sites are not VOWs. (Note that these sites are not IDX sites either, as they are sometimes erroneously labeled.) A VOW is by definition the web site of a real estate broker. An MLS could operate a VOW only if it were acting as a real estate broker – we are aware of no MLS that claims the right to do so.

If for nothing else, Larson/Sobotka deserves some sort of award for spelling these things out so clearly.  Now, to be sure, these should be construed as opinions of one law firm until litigation gives us definitive court rulings, but they strike me as being largely correct.

Assuming that Larson/Sobotka’s interpretations are correct, there are many implications that flow from the above three observations.

One, if IDX is entirely ungoverned by the settlement, then as Brian Larson points out, one can expect that the industry will begin to move towards VOW websites and away from IDX sites.  That could, in theory, be a Very Bad Thing for brokers and agents, however, as the plain fact is that imposing a “signup requirement” to consumers (especially if defined under state law, and that state law is onerous) will drive consumers away from such websites to those that are far more user-friendly.  How that will play out is wholly unknown.  Perhaps MLSes start relaxing IDX rules in response; perhaps brokers start working through their Real Estate Boards to change state regulations; perhaps something else altogether.  But this could be huge.

Two, if Zillow, et. al. are not VOW sites, then they do not fall under the protections (if that’s what they are) of the NAR-DOJ settlement.  So brokers or MLSes can explicitly prohibit its agents or members from giving data to these national aggregators without running afoul of the Settlement. Now, before you shrug, I happen to think there’s a fairly high likelihood of this happening.  Why?  Because of #3 –>

Three, if public-facing MLS websites (such as www.har.com) are not covered under the Settlement in any way, then they also don’t have to follow the “Broker-consumer relationship” rule either.  Which means that of all of the possible websites out there, only the MLS or Realtor Association websites can have all of the property info on every single listing without being subject to IDX rules, and without having to share any of those privileges with anyone else.

In other words, unless I’m totally misreading this, it seems to me that we now have a situation in which HAR (just to use an example; not that they would do this) could

1. display all of the listings info on HAR.com without limitation, and without the “signup” requirement;
2. prohibit all members of HAR from sending any data to Trulia, Zillow, or any national aggregator; and
3. force brokerages to use either shut-from-the-public VOW requirements, or ass-backwards IDX rules filled with purposely inane requirements to discourage the use of IDX.

Wow.  Just wow.

If this is a correct reading, then I differ with Brian Larson only in that even if there are 10,000 VOW’s by 2010, there will only be 50 websites by 2010 that any consumer goes to.

And how does this impact Realtor.com?  As Brian points out, nothing in the Settlement even mentions Realtor.com at all:

The settlement between DOJ and NAR makes no reference whatsoever to Realtor.com, either in the settlement agreement, in the attached VOW policy, or in the attached policy regarding the definition of “participant” in MLS. (In fact, the DOJ press release makes no mention of Realtor.com, either.) The DOJ lawsuit, and its settlement, deal almost exclusively with “virtual office web sites” which are by definition web sites of brokers participating in MLS offering brokerage services to their customers/clients. Realtor.com is not a VOW.

So Realtor.com is not a VOW.  Does its special relationship with NAR give it the same access that all of the local associations and MLSes now have? Will it be the sole national real estate website that can offer all of the information on a listing without requiring a consumer-broker relationship?

I’m thinking the answer might be Yes.

Talk about a seismic shift in the online real estate world.

Am I missing something crucial here?  Am I misinterpreting things?

-rsh

PS: I’m definitely adding the MLSTesseract to the blogroll.  A great site if you’re into some of the details of this stuff.

The NAR-DOJ Settlement is news outside of our little RE.net corner of the blogosphere.  One of the grand poobahs of the blogosphere, Jeff Jarvis of Buzzmachine, exults in a post entitled, “Take That, 6 Percenters!”.  Why, he’s positively leaping with joy:

The monopolistic hold big real estate agents have had on information — on access to use multiple listings services — has been blown open at last thanks to the Justice Department’s antitrust settlement with the National Association of Realtors.

Kiss your 6 percent commission good-bye, Ms. Agent! Competition is on the way.

The only reason — only reason — that Realtors could hold onto their high commission for such little value and work is that they kept information away from the marketplace, making it inefficient.

Yeah… about that whole “competition has been blown open at last” thing….

The rest of his post makes clear that it is more of a statement of hope rather than a sober analysis of the impact of the NAR-DOJ settlement.  For that matter, Jarvis really seems to know very little about how our industry actually functions.

That is to say, the control of information leads to inefficient marketplaces. But in the long run, Zillow is becoming far smarter than the smartest agent because it knows more thanks to the aggregation of our data about sales.

Is this the same Zillow that is taking feeds from the hated MLSes?  The same Zillow that is desperately trying to convince agents that it is not their enemy, because it realizes that the dumbest agent knows more about her local market than the supra-geniuses at Zillow ever could?  I say again, real estate agents have nothing to fear from Zillow; real estate brokerage companies, on the other hand, should worry.

His post quotes the New York Times story in which the general counsel of NAR says the settlement is no big deal:

Laurie Janik, the [National Association of Realtors] general counsel, said in a telephone interview that the settlement would have no real impact on home buyers or sellers.

“I don’t think they’ll see anything different,” she said. “This lawsuit never had anything to do with commission rates, or discount brokerages.”

To which Jarvis responds:

Bullshit. Competition is coming. Information will get freer. Rates will decline. Homes will be worth more. A more efficient marketplace is good for buyer and seller but not middleman. We’re finally headed in the right direction.

I suspect Jeff Jarvis hasn’t yet read the Proposed Final Order of settlement.  Or the Revised VOW Policy.  Or the original ILD Policy, which replaced the old VOW and IDX rules.  I wrote about this already so I don’t want to go into too much depth.

Nonetheless, suffice to say that I believe Mr. Jarvis and others currently enjoying the schadenfreude are in for a disappointing shock.

The settlement does not “free information”.  It does not create competition.  Rates will not decline as a result of this settlement.  The settlement covers only the minutest corner of the Real Estate Internet — the Virtual Office Website, a creature whose birth may have been accompanied by much crying and pain but whose death is going completely unnoticed.  Nothing in the settlement prevents NAR or individual MLS or even individual brokerages from telling Zillow and Trulias of the world to go take a flying leap off the stack of invoices from the lawyers involved in this ridiculous waste of time and money.

In fact, that this settlement will change absolutely nothing for buyers and sellers is evidence in and of itself of the strength of competition in the real estate industry.  MLSes and brokers aren’t sending their listings to Trulia and Google and Zillow because of a DOJ decree — they’ve been doing it for years now because it’s in their competitive best interest to do so.

If information becomes freer, if rates decline, that will be the natural result of competition within the real estate industry that remains pretty competitive despite being still too protected (by legislation and governmental action, not by NAR and broker action).  The Internet is a big part of that competition, and the future of real estate marketing is interactive at heart.  But DOJ, NAR, VOW — these are just mirages of a red herring in the dusty smoke.

The real action will unfold once the industry, DOJ, and others start to think really hard about IDX, about listings exchange, about data standardization, and ownership of listings data.

-rsh

I’m seriously up to my eyeballs in my dayjob (plus, I have to go to my second job of raising two little boys under the age of three after my dayjob — this second job is a LOT HARDER than my dayjob, I have to say…) but I had to emerge and say a word about the recently announced settlement between the DOJ and NAR.

Where’s the beef?

From the NAR website, I get this:

The final order expressly provides that NAR does not admit any liability or wrongdoing, and NAR will make no payments in connection with the settlement. The terms of the agreement preserve and strengthen the MLS as a means for broker-to-broker cooperation intended to serve real estate professionals who list or sell property in that MLS. “This will ensure that MLSs are used for what they were originally intended to do, which is help real estate professionals find buyers for people who want to sell their homes,” said Laurie Janik, NAR general counsel.

NAR will be reinstating an updated version of its VOW policy, which governs the use of MLS data for brokers who offer brokerage services online by requiring customers to register with the brokerage before they can search for homes. That policy was rescinded in 2005 when certain provisions were challenged by DOJ. The revised policy continues to protect the rights of sellers who do not want their property or their property’s address displayed on the Internet, and also protects sellers from having false information about their listings appear on the VOWs of a member of the MLS. Among other things, the revised policy requires brokers hosting others’ MLS data on their site to turn off features–such as home value estimates and blogs–surrounding a listing at the request of the seller.

The agreement requires MLSs and local associations that operate MLSs to pass and implement the amended VOW policy within 90 days of the court’s approval of the final order.

The revised policy comes at a time when brokers appear to be moving away from the VOW business model. “The response to VOWs hasn’t been great because consumers can find sites throughout the Internet on which to gather information without having to register their name and contact information,” said Mark Lesswing, NAR chief technology officer.

Okay. So basically, after three years, hundreds of thousands (possibly millions) of dollars in legal fees, and spending thousands upon thousands of taxpayer dollars on DOJ employees… we get… this pale imitation of reform?

Fact is, VOW’s suck for the consumer.  The user is required to register to use a VOW website.  From the NAR website:

The primary distinguishing feature of a VOW is the requirement that visitors register by entering an e-mail address and receive a password prior to accessing MLS listing data. Some MLS participants also post terms of use on their VOWs and require visitors to agree to those terms.

Um, big deal?  Consumers don’t care to use a VOW for the most part, because of the registration requirement.  This might be of some huge importance to the boys and girls at the DOJ, but as Brian Boero writes, “No one cares. The DOJ and NAR “settled” a dispute today that had pretty much resolved itself by 2005.”

Far worse, we have traveled from chaos — when individual rules for VOW’s by MLS created different regimes and different rulesets — to utter confusion.

The rules that were important to the industry was the Internet Listing Display (ILD) Policy that NAR itself said in 2005 replaced the old VOW and IDX policies.  The Proposed Final Order (PDF) of the settlement between DOJ and NAR gets rid of the ILD entirely in Section V(A), and replaces that with the Revised VOW Policy (PDF).  I guess that’s cool, but… where the heck are the rules for IDX display?  All that the Revised VOW Policy says is that “Participants” may use IDX on their websites.

The ILD, whatever its flaws, covered both VOW’s (where the user must register) and plain old websites without registration (where IDX rules governed).  The new Revised VOW Policy only covers VOW’s, which is not exactly where the industry is going.

Unless I’m very mistaken (entirely possible), this means that we are now entirely without direction as to IDX rules and policies.  The ILD replaced the old IDX policies; the new Revised VOW Policy specifically gets rid of the ILD entirely.  There is no Revised IDX policy (yet).  Therefore, we have traveled from chaos to confusion.

Thanks, DOJ!  Our public servants hard at work serving the public.  Sa-weet.

Presumably, NAR will promulgate a new IDX policy soon.  I can tell you the industry will need one in a hurry.  Presumably, that policy will need DOJ and/or court review to ensure that it does not stifle competition.  That’s a lot of presumptions and assumptions, and I am now thinking the medicine is worse than the cure.

More later, as time and duties permit.

-rsh