February 12, 1980
Subject:
Real Estate; Antitrust Laws; Real Estate Brokers and Agents.
Requested By:
Blanton Little, Secretary-Treasurer
N.C. Real Estate Licensing Board
Question:
May a local Board of Realtors, a private trade association, require a licensed real estate agent to become a member of the Board in order to be eligible to apply for membership in or association with a multiple listing service corporation established by the Board?
Conclusion:
No, if the multiple listing service is found to be an essential competitive tool in the real estate market it serves. (For clarification see opinion below)
This Office has previously issued an opinion that a local Board of Realtors, a private trade association, may not require a licensed real estate agent to become a member of the Board in order to be eligible for membership in a multiple listing service corporation established by the Board if the multiple listing service corporation is found to be an essential competitive tool in the real estate market it serves. (See 48
N.C.A.G. 38). Confusion has arisen as to whether this practice would be a per se violation under G.S. 75-1 and 75-2,and § 1 of the Sherman Act or whether a rule of reason approach should be used.
For clarification purposes, the previous opinion (48 N.C.A.G. 38) assumes that there is no reasonable relationship between membership in the local Board of Realtors and the operation of the multiple listing service. If there were a reasonable relationship, no unreasonable restraint would result by reason of requiring membership in the Board of Realtors as a prerequisite to membership in the multiple listing service.
In analyzing requirements for participation in a multiple listing service, each case must be decided upon its own facts. The competitive advantage of multiple listing service participation in the particular real estate market involved must be considered in light of the reasonableness of the requirements for participation and the extent to which such requirements restrict membership in the multiple listing service. When the multiple listing service is operated as an adjunct of a local Board of Realtors, either as a separate corporation or as a committee of the Board, and where membership in the Board is available on reasonable and non-discriminatory terms, there is no unreasonable restraint of trade.
Rufus L. Edmisten Attorney General
H. A. Cole, Jr.,
Special Deputy Attorney General