Article XIII - Definitions
Section 13.0 Definitions
Active Status Request Form – Shall mean the form required to be signed by a Seller and the Listing Broker when the Seller requests that an identified property remain an “active” Listing, notwithstanding that the property, absent the signing of the Active Status Request Form, would be a Listing that is “Under Agreement” and therefore deemed to be “off market”.
Auction – Shall mean the method of offer and sale of a Listed Property in a public forum by means of a process or procedure of open and competitive bidding that is included within the definition of an “auction” or a “public auction” by the statutes and/or regulations of the New England State, and/or by the relevant jurisdiction or jurisdictions within that State, in which the Listed Property is located.
Auctioneer – Shall mean both the Listing Broker for an Auction Listing and any individual Subscriber affiliated with that Listing Broker who, as agent of the Listing Broker, will direct, conduct or be responsible for the Auction of that Auction Listing. Each such Listing Broker and affiliated Subscriber (i) must also hold a current, valid real estate broker’s or agent’s license, as applicable, issued by the New England State in which the Auction Listing is located and (ii) if, but only if, required by the statutes, ordinances and/or regulations, or by the decisional law, of the New England State, and/or the relevant jurisdiction or jurisdictions within that State, in which the Auction Listing is located, must also hold a current, valid license or other appropriate certification as an auctioneer of real estate..
Auction Listing – Shall mean a Listing or Listed Property with respect to which the Listing Broker, pursuant to the Listing Agreement, will offer the Listed Property for sale in an Auction. For a property to be Listed as an Auction Listing, the property must be a non distressed property – that is, the proposed sale of the property may not be a bankruptcy sale, a foreclosure sale or any other sale that is ordered or compelled either by a court or by any other third party that is not the title holder of the Listed Property.
Co-Exclusive Listing - Shall mean a Listing or Listed Property with respect to which one Listing Broker, pursuant to its Listing Agreement with the Seller, will offer the Listed Property for sale and another Listing Broker, pursuant to its Listing Agreement with the Seller, will simultaneously offer the same Listed Property for rental or lease. Before a property may be listed in the System or in any Service Compilation as a Co Exclusive Listing, the Seller and both Listing Brokers must sign a Co Exclusive Listing Form and the Co-Exclusive Listing Form must be Filed with the Service.
Co-Exclusive Listing Form - Shall mean the form required to be signed by a Seller and by each of the Seller’s two Listing Brokers and Filed with the Service, when the Seller requests that an identified property be listed in the System and in each Service Compilation for sale by one Listing Broker and for rental or lease by the other Listing Broker.
Comparable Access - Shall mean the access to “comparable” information, “sold” information, and “statistical” reports (but not “active” listing data) that is in any Service Compilation and that the Service, upon request, may make available, in its discretion, to (i) any individual or entity that is actively engaged in real estate brokerage, management, mortgage financing, appraising, land development or building activities, whether or not that individual or entity is a Participant in the Service or is affiliated with a Participant in the Service, and (ii) any real estate assessor for a city or town in The Commonwealth of Massachusetts, in the assessor’s capacity as such.
Cooperating Broker - Shall mean the licensed broker who or which is (i) a Participant and (ii) either a subagent of a Listing Broker, a buyer’s agent or other appropriately licensed facilitator in the process of selling a Listed Property. Wherever the context so requires, reference in these Rules and Regulations to a Cooperating Broker shall include the Participant through which any individual Cooperating Broker is acting.
Deadline For Filing - Shall mean, with respect to a property, twenty-four (24) hours (excepting weekends, Service holidays and postal holidays) after the Listing Agreement or authorization for change with respect to the property (including, without limitation, price changes, changes in contingencies, pendings, cancellations, withdrawals, leases, rentals or any other change in the Listing, except only as provided in the next sentence) has been executed and delivered by all necessary signatories and has been received by the Listing Broker. Notwithstanding anything to the contrary set forth in the preceding sentence, (i) for a change to the status of “Under Agreement” (“UAG”), the Deadline For Filing shall be twenty four (24) hours (excepting weekends, Service holidays and postal holidays) after the execution and delivery by all necessary signatories of a purchase and sale agreement or, if earlier, a written bilateral offer to purchase or other equivalent bilateral agreement (and, in either case, the Seller has not requested that the Listed Property remain “Active” for back up offers) and (ii) for a change to the status of “Sold”, the Deadline For Filing shall be twenty four (24) hours (excepting weekends, Service holidays and postal holidays) after the recording of the deed for the Listed Property at the appropriate Registry of Deeds. For purposes of these Rules and Regulations, “Service holidays” shall be those days, identified by the Service from time to time in the Service Compilation, that the Service observes as holidays and that are not postal holidays.
Entry-Only Listing – Shall mean a Listing or Listed Property with respect to which the Listing Broker, pursuant to the Listing Agreement, is not obligated to provide, and will not be providing, any service to the Seller other than the Filing of the Listing and the providing of Seller Contact information to Cooperating Brokers.
Exclusive Agency - Shall mean, when applied to a Listing Agreement, a Listing Agreement under which the Listing Broker becomes the sole agent of the Seller and the Seller agrees to pay a commission to the Listing Broker if the Listed Property is sold or is rented or leased through the efforts of any real estate broker. Under an Exclusive Agency Listing, if the Listed Property is sold or is rented or leased solely through the efforts of the Seller, the Seller is not obligated to pay a commission to the Listing Broker or any other broker.
Exclusive Right To Rent - Shall mean, when applied to a Listing Agreement, a Listing Agreement under which the Listing Broker becomes the sole agent of the Seller and the Seller agrees to pay a commission to the Listing Broker regardless of whether the Listed Property is rented or leased through the efforts of the Listing Broker, the Seller or anyone else.
Exclusive Right To Sell - Shall mean, when applied to a Listing Agreement, a Listing Agreement under which the Listing Broker becomes the sole agent of the Seller and the Seller agrees to pay a commission to the Listing Broker regardless of whether the Listed Property is sold through the efforts of the Listing Broker, the Seller or anyone else.
Exclusive Right to Sell at Auction – Shall mean, when applied to a Listing Agreement, a Listing Agreement under which the Property is offered for sale as an Auction Listing, the Listing Broker becomes the sole agent of the Seller and the Seller agrees to pay a commission to the Listing Broker regardless of whether the Listed Property is sold through the efforts of the Listing Broker, the Seller or anyone else.
Exclusive Right To Sell With Dual Rate Of Commission - Shall mean, when applied to a Listing Agreement, a Listing Agreement under which the Listing Broker becomes the sole agent of the Seller and the Seller agrees to pay a specified commission if the Listed Property is sold by the Listing Broker without assistance and a different commission if the sale results through the efforts of a Cooperating Broker.
Exclusive Right To Sell With Named Exclusion - Shall mean, when applied to a Listing Agreement, a Listing Agreement under which the Listing Broker becomes the sole agent of the Seller and the Seller agrees to pay a commission to the Listing Broker regardless of whether the Listed Property is sold through the efforts of the Listing Broker, the Seller or anyone else, except that the Seller may name one or more individuals or entities as exemptions in the Listing Agreement and, if the Listed Property is sold to any exempted individual or entity, the Seller is not obligated to pay a commission to the Listing Broker (nor will the Service include the Listed Property as a “sold” in any manifestation of the Service Compilation).
Exclusive Right to Sell With Variable Rate of Commission - Shall mean, when applied to a Listing Agreement, a Listing Agreement under which the Listing Broker becomes the sole agent of the Seller and the Seller agrees to pay a specified commission if the Listed Property is sold by the Listing Broker either with or without the assistance of a Cooperating Broker and a different commission if the sale results through the efforts of the Seller.
Facilitation/Exclusive - Shall mean, when applied to a Listing Agreement, a Listing Agreement under which the Listing Broker does not represent either the Seller or the buyer or become the agent of either of them and the Seller agrees to pay a commission to the Listing Broker if the Listed Property is sold through the efforts of any real estate broker. Under a Facilitation/Exclusive Listing, if the Listed Property is sold solely through the efforts of the Seller, the Seller is not obligated to pay a commission to the Listing Broker or any other broker.
Facilitation/Exclusive Right To Sell - Shall mean, when applied to a Listing Agreement, a Listing Agreement under which the Listing Broker does not represent either the Seller or the buyer or become the agent of either of them and the Seller agrees to pay a commission to the Listing Broker regardless of whether the Listed Property is sold through the efforts of the Listing Broker, the Seller or anyone else.
Facilitation/Exclusive Right To Sell With Dual Rate Of Commission - Shall mean, when applied to a Listing Agreement, a Listing Agreement under which the Listing Broker does not represent either the Seller or the buyer or become the agent of either of them and the Seller agrees to pay a specified commission if the Listed Property is sold by the Listing Broker without assistance and a different commission if the sale results through the efforts of a Cooperating Broker.
Facilitation/Exclusive Right To Sell With Named Exclusion - Shall mean, when applied to a Listing Agreement, a Listing Agreement under which the Listing Broker does not represent either the Seller or the buyer or become the agent of either of them and the Seller agrees to pay a commission to the Listing Broker regardless of whether the Listed Property is sold through the efforts of the Listing Broker, the Seller or anyone else, except that the Seller may name one or more individuals or entities as exemptions in the Listing Agreement and, if the Listed Property is sold to any exempted individual or entity, the Seller is not obligated to pay a commission to the Listing Broker (nor will the Service include the Listed Property as a “sold” in any manifestation of the Service Compilation).
Facilitation/Exclusive Right to Sell With Variable Rate of Commission - Shall mean, when applied to a Listing Agreement, a Listing Agreement under which the Listing Broker does not represent either the Seller or the buyer or become the agent of either of them and the Seller agrees to pay a specified commission if the Listed Property is sold by the Listing Broker either with or without the assistance of a Cooperating Broker and a different commission if the sale results through the efforts of the Seller.
Filed (or variants on the term, as the context may require) - Shall mean directly input into the System by a Participant or Subscriber by electronic or other means or actually received by the Service from a Participant or Subscriber in printed or written form at the principal place of business of the Service for inclusion in the Service Compilation. All original and executed documentation - including all Property Data Forms, Listing Agreements and status change forms of any kind - must be kept by the Listing Broker and shall not be Filed with the Service. As set forth in Section 1.15 above, a Participant or Subscriber must submit to the Service such written information and data concerning its Listings, and copies of Listing Agreements related thereto, as the Service may request from time to time. Failure to comply with any such request may subject the Participant and/or the Subscriber to a fine as indicated in Attachment A hereto.
Images – Any photograph, sketch or other image of or directly related to a Listed Property in any medium, but not including any virtual tour of a Listed Property.
Listing or Listed Property - Shall mean a property as to which all necessary data, information and Images have been Filed with the Service.
Listing Agreement - Shall mean a signed written agreement between a Seller and a broker which constitutes either an Exclusive Agency, an Exclusive Right To Sell, an Exclusive Right to Sell at Auction, an Exclusive Right To Sell With Dual Rate of Commission, an Exclusive Right To Sell With Named Exclusion, an Exclusive Right To Sell With Variable Rate Of Commission, a Facilitation/Exclusive, a Facilitation/Exclusive Right To Sell Listing, a Facilitation/Exclusive Right To Sell With Dual Rate of Commission, a Facilitation/Exclusive Right To Sell With Named Exclusion, a Facilitation/Exclusive Right To Sell With Variable Rate Of Commission or an Exclusive Right to Rent. A Listing Agreement must include the Seller’s written authorization to the Listing Broker to submit the Listing Agreement to the Service and to File the Listing at such time and upon satisfaction of such conditions as shall be specified therein.
Listing Broker - Shall mean the Individual Participant or Participant Firm who or which Files a Listing with the Service.
Listing Status Codes - Shall mean the shorthand codes used by the Service to indicate the status of a Listed Property. A table of Listing Status Codes currently used by the Service is attached to these Rules and Regulations as Attachment B hereto.
Marks – Shall mean any of the marks and logos owned by the Service that use, include or incorporate in any way any one or more of the terms “MLS PIN”, “H3MLS” or “H3” or the block “MLS Property Information Network” mark, or any variant of the same, that appears on these Rules and Regulations, on the Service’s letterhead or on the Service’s website.
MLS Publications - Shall mean the copyrighted MLS books (Full, Supplement and Comparable) that the Service causes to be published and copyrighted in its name for the exclusive use of Participants and their affiliated Subscribers.
New England States – Means the states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont.
Non-MLS Listing/Delayed Listing Form - Shall mean the form required to be signed by a Seller and delivered to the Service by the Seller’s Listing Broker when the Seller requests either (a) that an identified property not be Listed in the Service or (b) that an identified property be listed in the Service, but only after the Deadline For Filing for that property and only on a fixed date specified in the Form or on a date still to be determined.
Office - Shall mean the distinct location from which a Participant or Subscriber conducts a real estate business that is licensed by the appropriate state real estate licensing authority, agency or board, or its functional equivalent, legally designated as such in one or more of the New England States.
Participant - Shall mean, as the context requires, (i) any individual or sole proprietorship and any partnership, corporation, limited liability company or other legal entity which Participates in the Service (sometimes referred to herein as a “Participant Firm”) and/or (ii) the individual who is designated by a Participant Firm to be the individual with the responsibility of the Participant under these Rules and Regulations (sometimes referred to herein as an “Individual Participant”). For purposes of qualifying for Participation in the Service, the proposed Participant Firm and the proposed Individual Participant shall be required to satisfy the applicable eligibility requirements stated in the definition of “Participation” below. Upon admission of a Participant Firm to Participation in the Service, an Individual Participant has and may exercise all of the rights, benefits and privileges of Participation in the Service in the name and on behalf of the Participant Firm with which the Individual Participant is affiliated. Any such Individual Participant shall be responsible for compliance with all of the liabilities and obligations to the Service by the Participant Firm with which the Individual Participant is affiliated, including compliance with these Rules and Regulations and with the policies of the Service by all of the Subscribers and other persons affiliated with the Participant Firm. Under no circumstances is any individual or entity entitled to be a Participant or to Participate in the Service unless the individual or entity (a) holds a current, valid real estate broker’s license issued by one or more of the New England States and has all necessary power and authority to offer and accept cooperation and compensation to and from other Participants, or (b) holds a current, valid license or certificate issued by an appropriate state regulatory agency or authority of any one or more of the New England States to engage in the appraisal of real property.
Participation - Participation in the Service shall be available only to (a) an individual, sole proprietorship or legal entity of any kind licensed as a real estate broker by one or more of the New England States or (b) an individual licensed or certified as a real estate appraiser by one or more of the New England States. Participation in the Service shall be available only to a licensed real estate broker or to a licensed or certified appraiser that, in either case, (i) under such licensure or certification, is engaged actively, or in good faith advertises or holds itself out to be engaged actively, in the real estate profession, either by buying, selling (which may include or consist exclusively of selling at Auction), exchanging, renting or leasing, appraising, building, developing or subdividing real estate, in each case for another person and for a fee, commission or other valuable consideration, or with the intention or in the expectation or upon the promise of receiving or collecting a fee, commission or other valuable consideration, and (ii) abides fully by these Rules and Regulations and the policies of the Service. In determining whether an individual, sole proprietorship or legal entity is eligible for Participation in the Service as a Participant Firm and whether an individual affiliated with a Participant Firm that is a legal entity is eligible for Participation in the Service as the Individual Participant of that Participant Firm, the Service shall apply the standards set forth in clause (i) to the Participant Firm and the standards set forth in clause (ii) to both the Participant Firm and the Individual Participant , and both the Participant Firm and the Individual Participant shall be required to satisfy all of the applicable eligibility requirements. “Participation” may be expressed in these Rules and Regulations in the verb form to “Participate”.
Primary Coverage Area – Shall mean The Commonwealth of Massachusetts and such other contiguous or non contiguous geographical areas as the Board of Directors of the Service from time to time may specify and designate as included in the Service’s Primary Coverage Area.
Property Data Form - Shall mean the printed or electronic form used to record data or information which will be Filed with the Service, including any printed or electronic form used to indicate a change in status of a Listing.
Public Access Website – Shall mean a website established or maintained by a Participant or by any of its affiliated Subscribers access to which is not limited or restricted.
Note: While, in some contexts, the term “Public Access Website” may correspond functionally to the term “Information Data Exchange” (sometimes referred to as “IDX”) promulgated by the National Association of Realtors®, the terms are not necessarily the same, and the Service is not bound by the use or interpretation of the National Association of Realtors® term.
Request for Deferral of Showing Form – Shall mean the form required to be signed by a Seller and delivered to the Service by the Seller’s Listing Broker when the Seller requests that Showings of an identified property be deferred to a date certain, specified in the Form, that is beyond the Filing of the Listing for that property.
Seller - Shall mean any one or more individuals and/or entities, as the case may be, who or which a Participant has determined to be the proper party or parties seeking to sell, lease or rent a property through that Participant.
Service - Shall mean MLS Property Information Network, Inc., a Massachusetts business corporation, or, as the context may require, the multiple listing service owned and operated by MLS Property Information Network, Inc.
Service Compilation - Shall mean any form, format or medium in which property listing data, information and Images and/or tax information are collected and/or disseminated to Participants from time to time by the Service, including, but not limited to, the System and any other computer database, any MLS Publication, any bound book, loose leaf binder and card file, and any other form, format or medium whatsoever. The Service Compilation and the data and information contained therein are copyrighted in the name of the Service.
Showing – Shall mean any on-site access to or viewing of a Listed Property by (i) any customer or client of the Listing Broker or of any potential Cooperating Broker or (ii) any Participant or Subscriber seeking to acquire an interest in the Listed Property.
Subscribers - Shall mean those non-principal brokers, sales licensees and licensed or certified appraisers and appraisal trainees affiliated with a Participant who are authorized by the Service, following payment of any applicable participation, access and other fees and charges, to use some or all of the goods and services provided by the Service and/or have access to some or all of the Service Compilation. Because a Subscriber’s rights under these Rules and Regulations are derived solely through the authority hereunder of the Participant with which the Subscriber is affiliated, the rights of a Subscriber to use goods and services provided by the Service and/or to have access to some or all of the Service Compilation shall be no broader, and, in the discretion of the Service, may be narrower, than the rights of the Participant with which the Subscriber is affiliated.
System - Shall mean the computerized database of property data, information and Images maintained by the Service.
Virtual Private Network – Shall mean a website or other means of electronic communication, established and/or maintained, directly or through a third party, by a Participant or by an affiliated Subscriber of a Participant, by means of which a Participant or Subscriber distributes, displays or makes available to one or more authorized persons (as hereinafter defined) data, information and/or Images contained in any Service Compilation. For purposes of this definition, the term “authorized person” shall mean (i) any individual or entity who or which has been determined in good faith by an Individual Participant or Subscriber to have a bona fide interest in purchasing, leasing or renting a Listed Property of the kind in which the individual or entity has expressed an interest to the Individual Participant or Subscriber; and (ii) any employee or agent of the Participant or Subscriber that has established or maintains a Virtual Private Network, provided that (A) the function of such employee or agent is solely to assist the Participant or Subscriber in the conduct of its business, (B) such employee or agent shall not have or assert any right to distribute, display, reproduce or use the data, information or any Image contained in any Service Compilation in its own name or on its own behalf and (C) such employee or agent complies with the limitations and restrictions set forth in Article X of these Rules and Regulations concerning the distribution, display, reproduction and use of the data, information and Images contained in any Service Compilation.
Note: While, in some contexts, the term “Virtual Private Network” may correspond functionally to the term “Virtual Office Website” (sometimes referred to as “VOW”) promulgated by the National Association of Realtors®, the terms are not necessarily the same, and the Service is not bound by the use or interpretation of the National Association of Realtors® term.
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