Public Vs. Agent – Only Remarks: What’s the Deal?

As a listing agent, you spend lots of time entering information into the Multiple Listing Service (MLS).  This could actually take several hours and it’s important that you double check the information to ensure accuracy.  After all, you don’t want to misrepresent the listing.  Once you have finished entering all the data, the MLS contains two sections for adding text about the property –  the public section and the agent-only section.

Now it’s time for the creative part… the public remarks section.  If creativity comes easy to you, the public remarks section will flow naturally.  Some brokers like to identify the special features or describe the property in a way that allows the buyers to visualize themselves living there. Brokers who struggle with creativity may also simply state the basic facts about the property; both of these approaches are acceptable, so long as the information provided is accurate.

Have you ever wondered exactly what type of information should be entered into the agent-only section of the MLS?  Let’s break it down.  The information entered is private information provided by the listing agent to potential buyer agents.  This information may include facts about the showing instructions such as, “Sellers work night shifts so no showings in the AM” or “Please allow time for sellers to remove two unfriendly dogs” or even, “Sellers would prefer a six week closing.”  The remarks in this particular section are disclosed to other agents, not to the public. 

What happens when a material fact is discovered about a property that needs to be disclosed and the seller is unwilling to disclose it in the Residential Property and Owners’ Association Disclosure Statement (RPOADS)? Listing agents are still required to disclose material facts they know about the property, even if the seller indicates “No Representation” on the disclosure form.  Some listing agents make these disclosures in the public remarks section of the MLS.  After all, the point of discovering and disclosing material facts is to put the public (not just other brokers) on notice in order for them to make an informed decision about whether or not they want to submit an offer. 

For example, let’s say your listing has gone under contract and the buyer’s inspector has discovered a deteriorated joist in the crawl space.  The buyer terminates and the property is back on active status.  Obviously, the RPOADS is the most appropriate place to disclose material facts.  However, agents occasionally have sellers who are unwilling to update the disclosure.  If this is the case, the listing agent may choose to make their required disclosure in the public section of the MLS.  Brokers showing listings should always review this section and provide any disclosures to potential buyers.  Additionally, a prudent listing agent will notify a potential buyer in writing and prior to offer submission by sending an email of disclosure to the buyer agent or, directly to the buyer if they are not represented. This is especially important when the buyer agent is not a member of the MLS.

Remember, the agent-only section is for providing important information to other brokers and not for disclosing material facts.