If you are going to exclude listing from MLS, you must use CAR form SEL (Seller instruction to exclude Listing from MLS).

Submitting your listings to the MLS

The housing market is back on track and the exuberance of REALTORS® in response to it is welcomed and certainly overdue in California. With the housing market performing so well and an abundance of ready willing and able buyers, there is a temptation to lose sight of the obligations, legal and otherwise, associated with submitting a listing or not submitting a listing to the MLS. We would like to take this opportunity to remind MLS participants and subscribers of some of these obligations.

Although the C.A.R. Model MLS Rules require home listings to be input into the MLS within 48 hours of obtaining all necessary signatures (Model Rule 7.5), listings may be withheld from the MLS if the seller decides not to submit the listing to the MLS (Model Rule 7.6). However, it  is

important to understand that obtaining the consent of the seller to withhold the listing from the MLS is only one aspect of a broker’s obligation to not only the client, but also in a more general sense to his fellow REALTORS®.

Under both general principles of California Agency Law and the N.A.R. Code of Ethics, a REALTOR® has a fiduciary duty to their client to at all times act in the best interests of the client. The Code of Ethics defines this duty as the "obligation of absolute fidelity to the client’s interests". This includes the obligation to provide your client with all the information they need to make informed decisions about the sale of their home, such as whether to list the property in the MLS.

When seeking and obtaining the consent of your client to withhold a listing from the MLS, one of the questions you must ask yourself is whether withholding the listing from the MLS is in the best interests of your client. One sure way to answer this question is to submit the listing to the MLS.

By submitting the listing, you are either going to receive superior "in house" offers, or you are going to receive better offers from those cooperating through the MLS. Either way, your decision cannot be second guessed from a legal or ethical standpoint.

Although the duty of fidelity to your client reigns supreme, some consideration should also be given to the general duty (See Code of Ethics, Article 3) REALTORS® have to cooperate with one another, and also the fact that this cooperation is fundamental to maintaining the strength of the industry, especially at a time when the industry is undergoing a great number of changes.

For these reasons, you should consider your legal and ethical obligations to your client and whether not submitting a listing to the MLS is in the best interests of your business and the real estate profession as a whole, neither of which are likely to enjoy today’s market forever.