Who Private Listings Are Really For - Seller or Brokerage? SC Private Listing Rules Part 3.

Private Listings: The Hidden Complaint Trap Real Estate Agents Miss

Private listings can create the complaint that comes back months later and hits the hardest—when a seller sees a nearby house sell for far more and starts asking why their home was never fully exposed to the market.

If you work in South Carolina real estate, this episode breaks down why that scenario is such a legal and licensing danger, and what the Commission’s guidance actually means for your file, your disclosures, and your license.

Gary Pickren digs into the real risk behind limited-market-exposure listings: not whether the sale closes, but whether the seller truly understood the trade-offs. A higher neighboring sale does not automatically prove harm, but it can spark a grievance, a deposition, or a lawsuit if the documentation is thin and the explanation sounds more like company policy than seller-specific judgment.

What You’ll Learn

Why a private listing can seem fine at closing and still become a major complaint later

• How the South Carolina Real Estate Commission views private listings, fiduciary duty, and conflicts of interest 
• Why a private listing can seem fine at closing and still become a major complaint later 
• The difference between a seller-driven decision and a brokerage-driven business strategy 
• What should be included in your file so it tells the story when memory fails 
• Why a seller’s signature is not enough without a real conversation about risks, exposure, and alternatives 
• How agents and brokers can better document the seller’s objectives and informed decision 
• Why patterns across an office may matter more than any single transaction 
• How plaintiff’s attorneys may use private-listing guidance in a future complaint or lawsuit 

Chapter Timeline

• 00:00 — Private Listings: The Risk of Seller Complaints
• 02:13 — Welcome and Firm Updates
• 03:21 — Introducing the Before You Sign Video Series
• 04:24 — Why Documentation Matters
• 06:28 — Conflicts of Interest and Civil Liability
• 08:41 — When Private Listings Become a Brokerage Strategy
• 15:01 — Five Practical Steps for Real Estate Agents
• 18:48 — Five Responsibilities for Brokers-in-Charge
• 22:33 — What the Commission Guidance Does—and Doesn’t—Say
• 23:40 — The Core Principle: Put the Seller First
• 27:34 — Final Takeaway and Closing

Gary also explains practical steps for agents and brokers in charge, including how to identify the seller’s true objective, how to use the commission form as a conversation guide rather than a signature page, and why the license on the line is yours—not your broker’s or your company’s.

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Gary

* Gary serves on the South Carolina Real Estate Commission as a Commissioner. The opinions expressed herein are his opinions and are not necessarily the opinions of the SC Real Estate Commission. This podcast is not to be considered legal advice. Please consult an attorney in your area.    

Transcript

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SPEAKER_01 0:00

What happens when your seller does a private listing and then the neighbor down the street sells a very similar house for a lot more money? You won't take a wild guess what the plaintiff's lawyer will tell your seller. I think it's going to begin with the word sue and it's going to end with the agent. And I think this is the issue with private listings. It's going to generate the most complaints. The private listing sells, everybody's happy, the seller gets the price that they expected, the transaction closes, but then three months later, something happens. A neighbor sells a house that's very similar, or maybe even less quality for dramatically more money than your seller. And let me say this very clearly: a higher sell by a neighbor does not automatically prove that the private listing seller was harmed because properties are different, markets change, interest rates move, conditions vary, renovations matter, lot sizes matter, timing matters, all the terms matter. And there could be a perfectly legitimate reason for this price difference. But from a complaint standpoint, none of that changes the seller's emotional reaction. Imagine this conversation. You told me $650,000 was a great price on this house. Yeah. You told me that private networks could get it sold. Yes, it did. And you told me I wouldn't have to go through all the hassle of putting it on the market. Yeah, correct. Well, the house three doors down from me just sold for $725,000. That's $75,000 more dollars than I got. Now, the seller starts thinking backwards, remember? How many people actually saw my house? How many buyers knew it was even available? Why didn't my property go on the MLS? Why didn't it go on Zillow? Why didn't it show up on these portals? Why did the buyer happen to come to your brokerage? Did I get the true market value for my house? And then you get this. Why did you recommend private listings to me? There's your complaint. And so we're going to go over all this and a lot more as we finish up the South Carolina Real Estate Commission guidance on private listings today on Dish and Dirt.

SPEAKER_00 2:03

This is Dish and Dirt with Gary Pickren, South Carolina's only podcast dedicated to the real estate agent craft. And now the host of Dish and Dirt, Gary Picker.

SPEAKER_01 2:16

I'm your often opinionated but really wrong host, Gary Pickerin, coming to you from the beautiful downtown Columbia, South Carolina offices of Blair Cato Picker, Castellon this, the second week of September 2026. First of all, I hope everybody had a happy and safe Labor Day. Our Myrtle Beach office is very happy that Norton Getty has started his very first day here at Blair Cato. That means that Vonda is back in our Sumter office, and we really do appreciate Vonda stepping up and covering our Myrtle Beach closings while we were transitioning to Norton Getty. But now we're very happy to have Norton in Myrtle Beach and having Vonda back in Sumter. We're also happy to announce that with Norton comes a brand new North Myrtle Beach office. And so we now have offices in North Myrtle Beach and in Myrtle Beach. And today I get to announce to you our brand new 12th office at Blair Keto Picker and Castelline. That office will open on Pendleton Street in Aiken, South Carolina, sometime this fall. It's going to be at 126 Pendleton Street, and we're very excited about that new office. Finally, I have another tremendous announcement. I've been working on something for the past couple of months, and I'm really excited about this brand new video series. As you know, in the past, all my video series have been directed directly to real estate agents about how to make your job better, how to protect yourself, and how to become the best agent you can be. What I'm doing now is a brand new series called Before You Sign. Now, this is gonna be directed to your buyers and your sellers, and we're gonna go through each one of the documents that your clients would sign with you, whether it's gonna be the buyer representation agreement, the listing agreement, the contract, seller disclosure forms. We're gonna go over all of those in details and then have several short videos that go along with each one. So first episode we're gonna do is gonna be the buyer agency agreement, and then we'll have about nine or 10 smaller topic videos that go right along with that before we move over to the listing agreement. The reason I'm telling you about this is that this would be a perfect video for you to watch to make sure that you have all the talking points you need when you're explaining the documents to your client. But it'd also be a great video to share with your client before you meet the first time. You could send them the video on buyer agency agreement so they can be familiar with it, know what questions that they want to ask you and what information they need before you even meet with them the first time. All you have to do is search Blair Cato on YouTube and you'll find our page, and it's gonna be under the playlist called Before You Sign Buyers. Now let's get back to the topic at hand. I keep coming back to documentation because by the time the complaint arrives, you're not trying to reconstruct what happened based on memory. You need your file to tell the story. What did the seller say mattered most to them at the time we were meeting? Was it privacy? Was it speed? Was it avoiding showings? Was it certainty? Was there some personal circumstance, something that was going on in their world in which they needed a private listing? Or was the stated goal simply get me the highest price? Because if maximizing price was the primary objective of the seller and the agent introduced a strategy that deliberately reduced the number of potential purchasers who could compete for the property, I think the agent better have a strong explanation as to why. And now the file becomes the witness. So let's assume an investigator asked for the file. What do they see in your file? Do they see the commission approved disclosure form? Do they see the seller's initials on all 11 places where you warned them they can make less money, it'd be harder to sell, they would have less competition for the property? Do they see whether the seller requested limited exposure or the agent recommended it? Do you see a written explanation as to why? Do you see the email communications? What were the seller's stated objectives? Do you see any explanation on alternative marketing methods? And do they see when the listing was going to become public if it didn't sell privately? Or do they just see a one-sided disclosure and nothing else? See, that's the difference between we followed a thoughtful process and this is just what our company does. And remember something else. The commission approved form itself makes it very clear that the seller's signature is not the end of the analysis. The seller should receive enough information to make an informed decision. So if the complaint comes down to I didn't understand what I was given up, that question becomes more than simply whether the seller initialed the page. What conversation occurred? What was said? What risks were actually explained? Now the plaintiff's lawyer is going to follow the money. So I want to move beyond the real estate commission now, and I want to imagine if this became civil litigation. What's one of the first things that the plaintiff's lawyer is going to ask? Who financially benefited from the private listed? Did the same brokerage represent the buyer? Did the company receive compensation on both sides? Was the buyer an existing brokerage client? Did the agent receive any internal incentives? Did the listing help the brokerage private network statistics? Was the listing marketed as exclusive inventory? Did the company use access to private inventory to try to recruit buyers or agents? Again, none of those facts simply by themselves prove wrongdoing, but they become important because of the fiduciary relationship set forth in South Carolina law. If the brokerage benefited financially from the recommendation, then the recommendation needs to withstand scrutiny. And this is why the commission's guidance is fundamentally about conflicts. Private listings are not inherently improper. Undisclosed or poorly managed conflicts are the danger. Hindsight's a terrible place to try to defend a transaction. Real estate agents make decisions based on the information that's available to them at that time. And you cannot guarantee what a market will do. You cannot guarantee what another buyer will or will not pay, but you can control the process and you can explain the alternatives and you can disclose the risk and you can document the seller's priorities. And you can avoid putting your interest or your broker or your brokerage's interest ahead of the clients. And you can make sure the seller understands the trade-offs before the decision is even made by the seller. And this is how you have to defend against hindsight, because hindsight always sounds pretty obvious. Of course we should elicit it publicly, maybe. But if at the time the seller said, I don't care if I get the absolute highest purchase price, I need this sold very quietly, and I don't want the public knowing I'm moving. That's a very different story. Documented contemporaneously is what matters. Created two years later after the complaint, that's not really going to help you all that much. Now let's get to the sentence that I think has the broadest implications. The commission says that limited market exposure listings should be approached using professional judgment and with careful attention to fiduciary obligation, and not simply as part of the brokerage business strategy. I think that's an incredibly important statement because nationally private listings are increasingly becoming exactly that: a business strategy. It's not a seller accommodation, it's not a seller strategy, it's not an unusual exception. It's a business strategy of the brokerage for the brokerage to make more money and to control the data. Think about this from the brokerage's point of view. If I control exclusive inventory, what happens? Buyers have to come to me to see the homes they can't find anywhere else. Agents may want to join my brokerage because I have listings that otherwise they can't get access to. And consumers may spend more time inside my website or my portal than in Zillow. Therefore, my brokerage becomes less dependent on third-party portals like homes.com and realtor.com and Zillow.com, and my agents have more opportunities to represent both the buyers and the sellers in the transaction. Essentially, you would control the transaction data. You would control more consumer relationships, and you get to create a competitive advantage. And that's very valuable. I understand why companies want private inventory, but the problem is that a brokerage's business objective and a seller's fiduciary interest are not automatically the same thing. And that's where the tension exists, and that's where it exists with South Carolina law. For years, residential real estate largely operated around an open marketplace model. The seller listed with one brokerage, the property was entered in the MLS, other brokerages could see it, buyers could bring, buyer agents could bring purchasers, listing syndicates outward. Listings were syndicated outward through IDX feed. The brokerage may own the client relationship, but it doesn't necessarily control access to the inventory. Well, private networks changes all that. They created what the technology world calls a walled garden. You have to be inside the walled garden to see everything. And if enough valuable inventory goes behind that wall, the wall itself becomes very valuable. And this is not unique to real estate. Technology companies have been doing this forever. Control the content, control the user, control the data, thus you control the transaction. But there's a unique problem in real estate. The inventory does not belong to the brokerage, it belongs to the seller. And the agent owes fiduci duties in South Carolina law to the seller. And that makes this a very different issue from a technology company deciding how to distribute its own product. The brokerage here is deciding how to market someone else's asset. And that is why the seller's best interest has to remain the controlling consideration. Now here's another question. If a brokerage advertises two agents, join us because our agents get exclusive access to private listings. That tells us something. The private listings have value to that brokerage. Again, that's not automatically improper, close, but it means there's a benefit beyond the seller transaction. The brokerage is monetizing or leveraging the exclusivity, maybe directly, maybe indirectly, maybe through recruiting or lead generation or brand advantage, maybe by attracting buyers. The more ways that the brokerage benefits, the more careful that the broker needs to separate why we want private inventory from why this seller should choose private marketing. It cannot become the same answer. This is where I think the South Carolina guidance creates a real challenge for private first business models. Suppose that the brokerage model says every new listing begins privately for five days. Why? If the answer is because that's our company policy or it's a good business plan or that's part of our company's business plan, then where is the individualized professional judgment? Where is the seller-specific reason? Where is the exception? The commission guidance says that those arrangements should generally be the exception rather than the normal course. Now, that doesn't sound particularly compatible with a mandatory or presumptive private first system that we're starting to see across the country. At a minimum, I think any South Carolina brokerage operating that way needs to review its policy very carefully. And if you're an agent working at one of these brokerages, you need to be very careful. If your broker or your team lead or somebody higher in the up in the company is coming to you and telling you this is a great program and how you can work your way around the South Carolina real estate guidance form here, you need to be asking yourself when the shit hits the fan, whose license is going to be before the real estate commission? It's not going to be the higher-ups of the company. It's going to be you. You're the one who's going to be standing there before the commission trying to explain why you did this and how it did not breach the fiduciary duty that you owed your seller. It's your license. The commission is saying start with the seller's circumstances, not the company's model. And this connects directly with everything we've been talking about on this podcast for the entire last year. The battle over the MLS, the battle over product exclusives, the battle over the portals, the battle over the listing data, and the battle over the brokerage consolidation. And at the end of the day, what is everyone fighting over? The consumer relationship. If I control the listing data, I control where the buyer looks. If I control where the buyer looks, I control the leads. If I control the leads, I have leverage over agents. I have leverage over agents, then I have leverage over the transaction. And this is why listing data has become so valuable. And private listings potentially make the data even more valuable because the information is so scarce. But South Carolina guidance is essentially saying before the industry turns listing exclusivity into competitive currency, remember whose property you're dealing with. The sellers. It ain't your house, it ain't your broker's house, and it ain't your brokerage's house. It's the seller's house. And whose interest has to come first? The seller, not your broker, not your brokerage, not some higher up at your company. That is the guardrail. And that's the guardrail that the real estate commission is warning you you better be looking at because your South Carolina law already says that to you. This isn't new law. This is just telling you what your law already tells you. So let's make this practical. If you're an agent listening today, what should you do? I think there's five things. Number one, stop treating private as a marketing buzzword. Don't sell exclusivity or private simply because exclusivity sounds premium. You're not joining some club. It's your house, it's the seller's house. Creating exclusivity to that house isn't necessarily going to be in the best interest of the seller. Explain what it actually means. The seller may gain privacy, the seller may avoid broad public exposure, but the seller may reduce showings, and the seller may also reduce buyer awareness, competition, and negotiating leverage. Because we know in the marketing world, the best way to market your property is or your product is not to tell anybody about it. Because that's what Coca-Cola does, right? They don't tell anybody about Coca-Cola at all because they don't want anybody to know about it to create exclusivity. No, they tell everybody about it. It's everywhere. It's marketed on billboards, on TV, on radio, everywhere, because getting the word out creates the demand. But you also need to explain both sides. If you only explain the benefits, that's salesmanship. If you explain the benefits and the risk, that's informed decision making with the help of a fiduciary. Number two, identify the seller's actual objective. Ask the seller, what matters most to you? Is it maximum price? Is it speed? Is it privacy? Is it certainty? Convenience? Do you want to avoid showings? A specific closing date? Because that answer matters. And write it down because later the question won't simply be, did the seller consent? It may be, why did this strategy make sense for this particular seller under this particular set of circumstances at the time? Their stated objective gives you the starting point. Number three, be careful when you are the one introducing the idea. Frankly, I don't think you should be introducing the idea at all because it should be such a rarity. There should never be a reason to introduce the idea. But if the seller independently asks for a private listing, you still need to explain the benefits and the risk. But if you introduce the idea, the commission guidance makes it extremely clear that you need to be able to demonstrate why the recommendation was in the seller's best interest and toward their stated goals. Don't casually suggest private marketing just because your company offers it. Pause and ask yourself what seller-specific fact pattern supports me making this recommendation? If you don't have the answer for that, you better rethink it because it's going to be your ass standing before the real estate commission. And you need to understand something also. Don't think for a minute that the plaintiff's lawyers haven't seen this guidance. So even if you never wind up before the real estate commission for a grievance, every plaintiff's lawyer now that wants to sue you will simply have this form and have this guidance. And in the deposition, they're going to walk you right through it. Right to your demise. So understand that too, that that document out there will be used by plaintiff's lawyers. Number four, use the commission formed as a conversation guide, not just as a signature page. Don't email the form through doc you sign saying please initial and sign. You need to go through it. Talk about fewer buyers, talk about fewer offers, talk about prices, terms, market time, representation, talk about fair housing issues, talk about all the potential consequences. Then document that conversation occurred. Put that in your file. Write it up. The form should be there simply to confirm the discussion. It should not replace your discussion. Number five, document the why. And maybe this is the most important practical advice in this whole episode. Write down the why. Not a novel. Maybe it's an email. Maybe it's a big file note. Maybe there's a brokerage form, but something in the file should say seller requested limited exposure because, or based upon seller stated objectives of X, agent discussed limited exposure because why? Because 18 months from now, 24 months from now, nobody will remember the exact conversation, but the file will. Now let's talk about your broker in charge because your role's a little bit different here. What are your five things that you should do after this guidance letter? Number one, review your existing private listing policy. If your office already has a policy, pull it out. Does it treat private listings as an exception or as a default? Unfortunately, I'm seeing more even here in South Carolina. After the guidance, acting like this is still a good business plan. Even though you've been told by the commission it's not, even though you know that if you, the agent, shows up before the commission, you're the one who's going to get hammered. But does this require seller-specific reasons? Does it distinguish seller requested from agent recommended? Does it address fair housing? Does it address how to avoid conflicts? Does it address broker in charge review? If not, you need to update it. Number two, you need to decide what you need to do before you sign. The commission form calls for the broker's acknowledgement. So establish a review procedure before signing it. Maybe you require the seller's reason in writing, the agent's reason if they introduced it, the intent, the intended scope of the marketing, the duration of the private listing before it will go public, and confirmation that the disclosure conversation actually occurred. Keep it simple, but don't sign it blindly. Number three, audit the pattern, not just the individual file. Here's where supervision becomes important. Because if one agent does one private listing because a seller is going through a very sensitive divorce, that's one thing. But if another agent has 40 private listings in six months, that's a pattern. Ask why. If 90% of private listings result in the affiliated agent bringing the buyer, that's a pattern. Ask why. If nearly every seller somehow independently requests the exact same limited marketing strategy, that's a pattern. Ask why. Supervision isn't only file by file. Sometimes the risk becomes visible only when you look across the office. Number four, review your incentives. Do compensation, awards, lead distribution, or recognition programs encourage agents to keep listings private? Are you as a broker encouraging your agents to do private listings as a business strategy? Could an agent economically benefit from recommending limited exposure? If so, address that conflict. You may need additional disclosures. You may need a policy change. You may decide that some incentives simply aren't worth the risk. But know what your compensation system is encouraging, because people do respond to incentives. Number five, train to the guidance. Don't assume agents read commission documents. Most won't. Hold a meeting. Walk them through the form. Show agents the two boxes identifying who introduced a strategy. Explain the brokerage certification. Explain the BIC signature. Explain fair housing. Explain the conflict concerns. And give them examples. Agents learn much better from fact patterns than they do from regulatory language. Use hypothetical. Seller wants secrecy because of domestic violence. Probably a very understandable case to use private listings. Seller wants the highest possible price an agent recognizes. Recommended keeping it within the company first. Now, the risk analysis substantially changes. Make your agent see the distinction. Now, before we close, I want to make sure we don't overread the document because that's just as dangerous as ignoring it. It does not ban private listing. We've said this several times. Limited market exposure listings remain permitted. The seller retains the right to determine how the property will be marketed. And it's the commission is not turning MLS participation into a universal statutory requirement. MLS rules are separate, broker obligations are separate. But what this guidance does is it addresses current South Carolina license law, your fiduciary duty under the law, your disclosure requirements under the law, as well as fair housing concerns. It does not say every private listing harms a seller. Some sellers may be better served by limited exposure based on their individual circumstances. That's why individual analysis matters. The issue is not certainty of outcome. The issue is whether the recommendation was reasonable, informed, and centered on the seller's interest and not the interest of your brokerage. And it does not create new legal duties. The guidance itself says that. What it does is it explains the commission's view of how these existing duties already apply in this context. And in some ways, that's a whole lot more important than some brand new rule. Because the commission is telling you, here is how we are thinking about this issue. So you better pay attention. So where does this all leave us? South Carolina has taken a very thoughtful approach. The commission did not ban private listings. It did not take choice away from the seller, and it did not say that every property must be broadly advertised. Instead, it went back to the basics of agency principles. The seller decides. The seller has to understand the risk when you are pushing private listings. The agent should put the seller's interest first, not your brokerage's interest. And I'm going to go off here for a second. Why do you care that your brokerage wants you to push these things? What do you get out of it? You get absolutely nothing out of it. You as a real estate agent are basically a small business. And you need to do what's in the best interest of your seller and what's in the best interest of you and your individualness as a company is not to be in a grievance situation and not to get sued. So if your company's sitting here telling you, oh, this will help the company's bottom line, who gives a damn? There's plenty of brokerage companies out there that don't need you to do private listings in order for them to make their bottom dollar. Bottom line is if the agent recommends reducing exposure, then you, the agent, you who hold the license, not your broker, not your brokerage, should be able to explain why that recommendation benefited the seller. That sounds rather simple, but I think it has some major implications because real estate is becoming increasingly driven by data, technology, and platform control. The largest companies want exclusive listings, portals want exclusive eyeballs, brokerages want exclusive consumers, everybody wants control. But a listing is not merely content. It's somebody's house, it's somebody's equity. It's often somebody's largest financial asset. Hell, it's most of the time their only financial asset. And the listing agent isn't just a marketer, they are a fiduciary. And that's why I think the most important question in this entire debate is incredibly simple. Who is the private listing really for? If the answer is my seller has a legitimate reason for wanting privacy, understanding the consequences, and made an informed decision, that's one thing. But let's be honest, that happens about one half of 1%. So rarely does your client ask for it, and rarely does your client have a reason for it. But if the answer starts sounding like it helps our company control the inventory, it creates exclusivity, it brings buyers into our ecosystem, it gives our agents an advantage, it helps us keep both sides, then we've lost the plot. And your broker and your brokerage can sit there and give you a bunch of gaslighting reasons as why it's good for the seller when we know that's not true. Because the seller did not hire you to build your ecosystem. The seller hired you to represent the seller. And the South Carolina Real Estate Commission has now made that distinction very clear. Private listings remain legal, but the real question isn't simply whether you can do one. It's whether you can defend why you did it. Was the seller informed? Was the decision voluntary? Was the strategy consistent with the seller's objective? Were the risks disclosed? Were the conflicts addressed? Did you consider fair housing implications? And if you did recommend it, can you demonstrate that the recommendation was made for the seller rather than for you, your broker, or your brokerages? That is the takeaway. And I think we're going to be talking about this issue for a long time because a national battle over private listings is not slowing down. If anything, it's accelerating. And unfortunately, South Carolina now is seeing more and more of these. But South Carolina has also put its marker down. Broad public marketing is generally the norm. Limited exposure should generally be the exception. And fiduciary duty still controls each and every single transaction. It's your license, it's not your broker's license, not your brokerage's license, it's your license. So go ahead and listen to your broker and your brokerage talking about how this is a good business strategy and using the word business strategy and how it helps the company's bottom line and find yourself getting sued or getting grieved. And they won't be there, the ones having their license taken. That's going to do it for this week's episode of Edition Dirt. If you're a South Carolina real estate agent or a broker in charge, I strongly encourage you to read the commission's guidance document and review the new disclosure form before your next limited market listing. Don't rely on a summary, read it. Talk about it in your office, build a process around it, and make sure the file answers the most important question. Why was limited exposure in the seller's best interest in each and every case? If you can answer that question clearly, you probably ask the right questions. If you can't, that's your warning sign. All right, we'll see you next time on Dish and Dirt. Hope everybody has a wonderful weekend. Y'all like us, subscribe, and share. We'll come back and see you again next week.