Step 1: Implementing and Understanding the Concepts:

Implementing these concepts requires a realigned understanding of the real estate business. Real estate brokers do not “sell” real estate, rather they use their professional skills and knowledge to market real estate. Those skills and knowledge, including the collection and organization of the information needed to effectively market the real estate, represent the intellectual property which is critical to the real estate brokerage business and also valuable to those who would misappropriate it for themselves. Understanding these concepts is the critical first step in the process for everyone.

MLS: Educate the brokers, agents and vendors. Protecting the MLS and ultimately its members from liability for unauthorized use of another party’s intellectual property is just one benefit. Documenting the lines of ownership will greatly enhance the ability of the MLS to police and prevent unauthorized use of the listing content and the MLS database as a whole to the benefit of all participants in the MLS.

Brokers: Educate the agents. Directing them to this online toolkit is a great first step. Agents need to understand the importance of having centralized ownership of the listing content by the broker and the key role they play in accomplishing that. With that understanding they will, in turn, be able to explain the issue and it importance to clients.

Step 2: Understanding and Reviewing Current Documents for “Breaks” in the Chain of Ownership:

Understanding the chain of ownership and what documents brokers and the MLS currently use to manage this listing content is key. Brokerages and MLSs can differ in size, management structure, business structure, and in a host of other ways. Therefore, no one document will fit every type of situation. Therefore, it is important that brokers and MLSs review these documents with their attorney and tailor their documents, or the sample documents to meet their specific needs.

  • Brokers and MLS:
  • Using the flowchart, review the documents you currently use with your attorney to determine whether there are any “weak links” or “breaks in the chain”. Intellectual property is a very specialized field, and therefore your attorney may need to employ an expert consultant in this field.
  • Review the sample agreements in this toolkit and the accompanying implementation guides for guidance and direction.
  • Determine which documents need to be either amended by adding additional language, modified by altering language that already exists, or created because they do not currently exist.

Step 3: Revising and Implementing the Documents:

Once you determine which documents need to be altered, modified or created, you will need to work with your attorney to revise the documents to meet your specific needs.

    If you use your own forms and documents:

  • Work with your attorney to create new forms and documents that adequately protect and manage the listing content.
  • Make sure you have identified and addressed all aspects of listing content, and that there are no “breaks”.
  • Once you revise your agreements and documents explain the changes to your agents, brokers, and / or vendors. It is important that the parties to these agreements understand their implications.

    If you use association / state forms and documents:

  • Contact your forms committee regarding any “weak links” or “breaks in the chain” that are evident in the standard forms.
  • Encourage the forms committee to modify their agreements in accordance with the principles described above.
  • NOTE: A few states have state mandated forms, accordingly, you should encourage your association or MLS to make the state aware of these issues and the need to review their standard forms and make the needed changes.
  • In the meantime or in the alternative, work with your attorney to create attachments, or addendums to the forms you are using to repair “weak links” or “breaks in the chain”.
  • Once you revise your agreements and documents explain the changes to your agents, brokers, and / or vendors. It is important that the parties to these agreements understand their implications.
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