Gulf Coast Association of REALTISTS® — Policy Analysis

The Return of the Private Listing: Are We Creating a New Era of Housing Segregation?

Published by the Gulf Coast Association of REALTISTS®. The views expressed are the author's policy analysis.

How the battle between Compass, RE/MAX, eXp Realty and the MLS raises fundamental questions about fair housing, equal opportunity and the future of American real estate

By Dr. Zakk Varughese, Real Estate Broker

Founder and Chairman of the Board, Gulf Coast Association of REALTISTS®

Author, Breaking Barriers: Confronting Racism in American Real Estate

November 2026

A New Battle Over Who Gets to See Homes for Sale

The American real estate industry is in the middle of a fundamental disagreement over how homes should be marketed and who should have access to information about homes available for purchase.

At the center of the controversy is Compass, one of the nation's largest residential brokerages, which is challenging Multiple Listing Service (MLS) rules that penalize agents who publicly market a property without submitting it to the cooperative listing system. In September 2026, Compass sent formal demands to MLSs including California Regional MLS and OneKey MLS, threatening federal antitrust litigation if the rules did not change. By late October, at least nine MLS organizations representing roughly 272,000 subscribers had publicly refused, and the dispute had produced competing lawsuits, including a joint action by six MLSs filed in the U.S. District Court for the Southern District of New York, according to Inman.

Other major brokerages, including RE/MAX and eXp Realty, are moving in a different direction, emphasizing broad distribution and cooperation. Consumer and civil-rights organizations, including the Consumer Federation of America and the National Consumer Law Center, have asked the Federal Trade Commission and the Department of Justice to examine private-listing arrangements.

Most of the public debate has centered on competition, seller choice, technology and brokerage profitability.

There is another question that deserves equal, if not greater, attention:

Could the expansion of private listing networks undermine decades of progress toward fair housing and equal access to homeownership?

For an industry with a documented history of racial exclusion, this cannot be dismissed as a disagreement over marketing strategy. The consequences could reach far beyond the companies involved.

Understanding the Private Listing Controversy

For decades, the MLS has served as a cooperative marketplace through which participating brokers share information about properties for sale. That structure allows a small independent brokerage to access much of the same inventory as a national franchise.

The system is not perfect. But it reduces the extent to which a buyer's access to available homes depends on personal connections or affiliation with a particular brokerage.

Compass advocates a phased approach that can begin with a Private Exclusive listing visible only within Compass, move into a company-controlled Coming Soon period, and eventually transition to full MLS exposure. The company says this gives sellers greater control over privacy, timing, pricing and marketing, and CEO Robert Reffkin has argued that homeowners should be able to market discreetly without "days on market" counters and public price-cut histories on portals.

Those considerations are legitimate. Not every seller wants immediate public exposure.

But the question is not simply whether sellers should have choices. They should.

The more consequential question is whether those choices should permit parallel housing marketplaces in which access to available properties depends on which brokerage represents the buyer.

If one brokerage's agents can see properties that buyers represented by other brokerages cannot discover, unequal access becomes a structural feature of the marketplace. That does not automatically constitute unlawful discrimination. It does create conditions that deserve careful examination.

I made a version of this argument in Breaking Barriers before the current dispute reached the courts. "Information is power in every market," I wrote there. "In real estate, it can shape the entire structure of opportunity by determining who sees inventory first, who receives reliable market data, who can market listings broadly, who appears credible to cooperating brokers, and who gains access to the shared listing infrastructure." A profession "may be legally open while remaining structurally uneven," and "markets cannot be fully open if their central systems of cooperation and visibility are experienced as controlled territory" (Varughese, 2026, pp. 160–161).

Canopy MLS CEO AnneMarie DeCatsye drew the relevant distinction when she separated a seller choosing to keep a property private from a brokerage publicly marketing a property while withholding it from the MLS. "Seller choice, broker innovation and cooperation are not mutually exclusive," she said.

The Fair Housing Act Was Intended to Remove Barriers, Not Create New Ones

The Fair Housing Act of 1968 was enacted when racial discrimination and residential segregation were deeply embedded in American housing markets. The law, as amended, prohibits discrimination in housing because of race, color, religion, national origin, sex, familial status or disability.

Among its protections, 42 U.S.C. § 3604 prohibits practices that deny or make housing unavailable, discriminatory housing advertisements, and false representations about the availability of housing.

Technology has transformed how homes are marketed. It has not eliminated the possibility of discrimination.

Consider two equally qualified buyers seeking homes in the same community. One is represented by an agent with access to a large private listing network. The other is represented by an independent broker outside that network. The first buyer may learn about properties before they become broadly available. The second may never learn those properties were offered for sale.

That difference in access is not necessarily a Fair Housing Act violation. Brokerage affiliation, standing alone, is not a protected characteristic.

But if access policies intentionally discriminate against protected groups, or if a specific practice produces legally actionable discriminatory effects, liability may arise.

The distinction is critical.

A housing marketplace can create unequal opportunity without every unequal outcome being an independently established violation of federal law.

Research Suggests There Are Reasons for Concern

In November 2025, Zillow published an analysis of more than 40,000 residential listings active on October 21, 2025, in Midwest Real Estate Data (MRED), the MLS serving the Chicago area, which has operated its own private listing network since 2016.

Zillow reported that homes in majority-white neighborhoods were 2.2 times as likely to appear in the private listing network as homes in majority-non-white neighborhoods, after controlling for price, home type, location and broker activity. The reported private-listing shares were:

7.9% in majority-white neighborhoods.
3.4% in majority-non-white neighborhoods.

These findings raise serious questions about who benefits from private marketing and whether the practice reinforces existing patterns of residential segregation.

The findings must also be interpreted carefully.

MRED disputed Zillow's characterization. In a letter to its roughly 50,000 members, the MLS said its network was launched "to make all properties available to all agents and brokerages across the market" and to prevent "shadow networks off the MLS that could lead to discrimination and exclusion." It noted that majority-white ZIP codes carry about three times as many active listings as majority-non-white ZIP codes, questioned whether a one-day snapshot accounted for rentals, investor purchases and off-MLS sales, and said it had asked Zillow for its methodology. MRED also argued that Zillow's criticism was driven by its own interest in controlling listing distribution.

That last point is fair. Zillow is a commercial participant in this fight, which makes independent replication essential. And a difference in private-listing prevalence does not establish that any particular brokerage intentionally discriminated or that a specific listing caused an unlawful outcome.

Still, the study illustrates why fair-housing analysis should be based on evidence rather than assumptions. If private listings are concentrated in particular communities, regulators and researchers should examine who can discover those properties, who receives opportunities to purchase them, and whether protected groups experience materially different access. No independent regulator or court has resolved the competing claims.

NAREB President Ashley Thomas III: Transparency Is Fair Housing

The National Association of Real Estate Brokers (NAREB), founded in 1947, brings a particular perspective to this controversy. NAREB was established when Black real estate professionals were excluded from much of the organized industry. Its mission of "democracy in housing" reflects that history.

In a June 19, 2026, interview with Inman, NAREB President Ashley Thomas III addressed private listing networks directly.

"Our position is very clear. Transparency is fair housing."

Thomas placed the issue in historical context: "For the first 70 years of the organized real estate industry, we had a listing system that was not inclusive. Black people, specifically, could not access that list, so we understand very well what it means to be on the outside and trying to get in, and I think that's replicated today through technology."

He also drew a careful line on intent: "We're not saying that discrimination or redlining is the intention, but it is the outcome. And that outcome cannot be supported."

That distinction deserves attention. An industry practice should not escape scrutiny merely because its stated purpose is unrelated to discrimination. At the same time, accusations of unlawful conduct must be supported by evidence. NAREB's concern should push the industry to measure housing outcomes, not presume that every private listing reflects discriminatory intent.

What Are Compass, RE/MAX and eXp Realty Doing?

The three companies illustrate three approaches to listing distribution.

Compass: Seller control and phased marketing. Compass supports expanded opportunities to market properties outside conventional MLS distribution and has challenged MLS cooperation rules through antitrust litigation. Its argument rests on seller autonomy, brokerage competition and the question of whether MLS organizations, which are made up of competing agents, should set the rules of competition among them. Compass has also demanded that MLSs stop sharing its listing and agent data with recruiting-technology vendors.

RE/MAX: Cooperation with additional marketing options. On March 17, 2026, RE/MAX announced that participating brokerages could promote pre-market properties through Zillow Preview. CEO Erik Carlson described the move as "a public stand for transparency" and said RE/MAX is focused on "exposing listings to the broadest range of potential buyers."

eXp Realty: Non-exclusive distribution. On March 18, 2026, eXp announced that, beginning April 15, its agents could syndicate Coming Soon listings through Zenlist to Realtor.com, Homes.com and HouseCanary's ComeHome.com, with any other portal able to receive the feed "on equal terms," subject to seller wishes and MLS rules. On October 27, eXp and RealScout announced an integration bringing eXp Coming Soon listings into RealScout later this year.

None of these approaches should automatically be labeled fair-housing compliant or noncompliant based on the marketing model alone. The appropriate test is whether actual practices provide lawful, equitable access to housing opportunity.

Seller Choice Must Be Balanced Against the Public Interest

One argument in this debate holds that protecting fair housing requires eliminating private listings altogether. That conclusion is too broad.

A seller may have personal safety concerns, privacy obligations, sensitive family circumstances or other reasons to restrict publicity. Those interests deserve respect.

But informed seller choice requires more than a signature on an authorization form. Sellers should understand the potential consequences of restricted marketing, including reduced buyer exposure, fewer competing offers and uncertainty about whether the property will achieve the strongest available price. They should also understand any benefit their brokerage receives by keeping the listing inside a controlled network.

The National Association of REALTORS® addressed part of this tension in March 2025 with its Multiple Listing Options for Sellers policy. The policy permits locally defined delayed marketing under specified conditions while retaining visibility requirements that protect cooperative access.

The distinction demonstrates that seller choice and cooperative market access are not incompatible. The objective should be to accommodate legitimate seller preferences while preventing unnecessary barriers to housing opportunity.

A New Form of Digital Redlining?

The phrase digital redlining has entered the private-listing debate. Historically, redlining systematically restricted housing and credit in particular communities, often along racial lines. Modern listing technology raises a related but distinct concern: Could algorithms, restricted networks, selective notifications or exclusive marketing arrangements limit the housing information that reaches particular populations?

The U.S. Department of Housing and Urban Development addressed digital advertising in guidance issued April 29, 2024. HUD explained that housing advertising technologies may violate the Fair Housing Act when targeting or delivery practices deny people information about housing opportunities because of protected characteristics.

That guidance does not make private listing networks categorically unlawful. It does establish that access to housing information has fair-housing implications before anyone attempts to buy.

The legal landscape is also shifting. In 2026, HUD proposed rescinding its disparate-impact regulations, the standard that reaches policies with discriminatory effects regardless of intent. The author filed a public comment opposing the rescission. Proposals must be distinguished from enacted law, binding precedent and established findings of discrimination.

The industry should avoid both extremes: dismissing every concern about discriminatory effects, and treating every unequal outcome as proof of unlawful conduct.

Independent Brokerages and the Risk of a Two-Tier Marketplace

The expansion of private listing networks also raises questions about smaller independent brokerages.

Cooperative listing arrangements have historically narrowed the competitive advantage of size. A national company may have tens of thousands of agents, large advertising budgets and proprietary technology. An independent broker may run a much smaller operation. Both can participate in a common marketplace and help qualified buyers find homes.

If significant portions of inventory move into brokerage-controlled networks, that changes. The MLSs suing Compass make a version of this argument, contending that a brokerage that uses shared MLS data to serve its buyers and price its listings while withholding its own publicly marketed inventory is free-riding on the cooperative system.

The concern is especially acute for independent brokerages serving communities that have historically faced barriers to homeownership.

Some housing barriers operate in public. Others, as I wrote in Breaking Barriers, "exist inside the closed circuit of professionals talking to one another: who gets invited in, who is quietly warned away, whose complaint is believed, whose expertise is doubted, who hears about the deal before it surfaces." In that chapter, a new licensee watches a colleague congratulated "on securing a listing that had never been publicly advertised" and realizes that "no rule had excluded" him and "no policy had been violated. He simply had not been part of the conversation where the opportunity first began to move" (Varughese, 2026, pp. 229–231). A private listing network is that conversation, formalized and scaled.

A buyer should not have to choose a particular national brokerage to learn that a home is available. A seller should not be led to believe that limiting exposure produces better results without reviewing objective evidence.

Competition between brokerages is healthy when it drives innovation and better service. It is troubling when competition over control of information reduces transparency or meaningful consumer choice.

What Must the Real Estate Industry Do?

The industry should adopt an evidence-based approach that respects both seller autonomy and fair housing. Five safeguards deserve serious consideration.

First, establish transparent and objective access standards. Brokerages operating private networks should document how buyers and cooperating agents obtain information and ensure that protected characteristics do not influence access.

Second, strengthen informed seller consent. Sellers should receive clear explanations of the benefits, costs and tradeoffs of limited marketing, including any financial or competitive incentive affecting their brokerage's recommendation.

Third, conduct independent fair-housing studies. Researchers should examine listing availability, neighborhood demographics, buyer access, offer opportunities, transaction outcomes and the treatment of comparable consumers, using methods that address the objections MRED raised to a one-day snapshot.

Fourth, preserve meaningful participation for independent brokerages. Policymakers should examine whether restrictions on listing information create unjustified competitive barriers, while recognizing legitimate privacy interests and the limits of antitrust and fair-housing law.

Fifth, strengthen accountability. Regulators, MLS organizations, brokerages and fair-housing advocates should develop practical mechanisms for investigating discriminatory conduct and evaluating significant disparities in access to housing information.

These measures will not end every disagreement about private listings. They would ensure that the industry's decisions rest on consumer protection rather than corporate advantage alone. The standard is the one I set out for MLS organizations in Breaking Barriers: "Information is infrastructure. Transparency strengthens trust. Access strengthens competition. Markets function best when information serves consumers rather than institutional advantage" (Varughese, 2026, p. 250).

Conclusion: Housing Opportunity Should Not Depend on Who You Know

The controversy surrounding Compass, the MLS, RE/MAX and eXp Realty is more than a dispute about listing technology. It is a debate about the architecture of the American housing marketplace.

Who controls information? Who receives early access? Who gets excluded? Who benefits financially? And who has a fair opportunity to purchase a home?

The history of American real estate shows that exclusion does not always begin with an explicit refusal to sell. Sometimes it begins with restricted information, selective relationships and barriers that prevent people from knowing an opportunity exists.

Private listings are not inherently discriminatory. Sellers have legitimate interests in privacy and control. Brokerages have legitimate interests in innovation and competition.

Those interests should not prevent serious examination of whether emerging listing practices undermine equal housing opportunity.

We should not allow the real estate industry to recreate, through private networks and modern technology, the barriers that generations of fair-housing advocates worked to dismantle.

The industry's future should be built on transparency, lawful competition, informed consumer choice and meaningful access to homeownership.

Because the American Dream should not depend on knowing the right broker, belonging to the right network, or having access to information that others are never permitted to see.

Fair housing is not simply the absence of an unlawful refusal to sell. It is a commitment to finding and removing the barriers that unfairly restrict housing opportunity.

About the Author

Dr. Zakk Varughese is a Mississippi real estate broker, founder and chairman of the board of the Gulf Coast Association of REALTISTS® (GCAR), a NAREB local board, and chairman of its separately incorporated Foundation. He was ranked No. 1 in Mississippi and No. 9 in the nation on NAREB's 2026 Top 100 and is the author of Breaking Barriers: Confronting Racism in American Real Estate and Clarity Is Not Coming. He advocates for fair housing, consumer protection and expanded access to homeownership.

Sources and Further Reading

This article presents research, public statements and the author's policy analysis. It does not allege that any named brokerage or MLS has been judicially determined to have violated federal fair-housing law through its private-listing practices.