If you’re following real estate media, you might be noticing emphasis on MLSs considering non-Realtor access to the data. It’s quite a discussion, actually, with recent movement in Phoenix and Austin.

First, let’s take a realistic look at the topic. Across the nation there are somewhere near 600 MLSs. Of those MLSs, most are owned by a single local Realtor association. This is true of some of the largest MLSs the country, including Houston’s. On the contrary, a number of mega-sized MLSs are co-owned by multiple local Realtor associations. These are often referred to as regional MLSs. The difference is important as we dive into the idea of non-Realtor access.

First, it’s imperative we understand that local Realtors associations are chartered by the National Association of REALTORS® (NAR), and each local association has specific agreements it must follow. One of those agreements is the three-way agreement, which, in short, says that to be a Realtor — a member of NAR — an agent must join all three levels of associations: national, state and local. Furthermore, most local Realtor associations that own their own MLS — and frankly, most other MLSs — require Realtor membership for access.

It’s really no different from a golfer who wants to play at a certain country club — they’d need to be a member of that country club. Makes sense, right? But some argue this is an illegal tie-in arrangement, whereby to get one product, you have to buy another. If I developed the golf course, though, shouldn’t I be able to require a membership? Yes, I should.

However, a 1991 lawsuit — Thompson v. Metropolitan Multi-List, Inc. — challenged this notion. In that case, the federal district court determined that membership could not be required for MLS access. So, for many years, a few states, including Florida and Georgia, have operated with the policy that the MLS can be accessed by non-Realtors. How does this affect Chicagoland agents?

Recently the mega-MLS in our region, Midwest Real Estate Data (MRED), serving roughly 45,000 agents, started the process to remove Realtor-only access. It’s a three-step process: First, MRED’s board of managers put forth a motion, which passed. Next, this motion needs to go before MRED’s Preferred Unit Owners (PUOs). There are about 130 PUOs who are owners of brokerage firms (not offices) that access MRED and who paid a fee to essentially become owners. This ownership gives these firms the right to vote for changes to MRED’s operating agreement.

In this case, the motion to remove Realtor-only access is within the operating agreement. The PUOs have a meeting scheduled this April; the item will be voted upon there. Of course, it’s likely to be supported, as brokerages see the ability to stop paying Realtors’ fees and dues for three associations, saving themselves and their agents lots of money. But wait — will they?

The third step to approve this motion lies with MRED’s parent company, Multiple Listing Service of Northern Illinois (MLSNI). This group is made up of representatives from each of the subscribing Realtor Associations (12 in all). (MLSNI is known as MRED’s common shareholder officially.) Within this group are seven local Realtor associations that put forth the nearly $6 million to build and develop MRED some 15 years ago. Then there are an additional five local associations who’ve come on board to allow their Realtor members to utilize MRED’s service. The voting process is a little more complicated and not necessary to dive into here, but this group especially, as a whole, would need to approve the decision to remove Realtor-only access to the MLS.

But why would they do that? Why would they potentially cut their own membership by allowing agents access to “the golf course” without “joining the country club?”

Alas, the associations haven’t made a decision about this. They are gathering information as to the concerns and benefits of allowing the bifurcation of the MLS from the Realtor association. Other states, like Florida and Georgia, model how this could work. However, if a licensee accesses the MLS without Realtor association membership, where would they get their forms, required CE, lockboxes, optional education, government advocacy and other benefits?

Perhaps most importantly, what would happen to the REALTOR® Code of Ethics and complaint process if MLS access doesn’t require REALTOR® membership? If an agent had a complaint against another agent, would they call the state? The state real estate laws are far less demanding than the NAR’s Code of Ethics, and the state process is also far more complex. It could become the Wild West once again — NAR’s Code of Ethics was developed in 1913 — because of bad dealings and negative impacts on the consumer. It’s an interesting conundrum.

So, while on the surface removing the Realtor membership requirement from MLS access seems like an easy decision for brokerages, it comes with a myriad of complications, which will still need to be addressed.

Jim Haisler is CEO of the Heartland REALTOR® Organization.