An off-market sale in New Jersey is a sale of a home that is not entered in a multiple listing service or syndicated to the portals; the property is shown by appointment to buyers the brokerage has qualified. Everything the law attaches to a residential sale still applies: the Consumer Information Statement, the Seller’s Property Condition Disclosure Statement, the flood-risk and lead-paint disclosures, attorney review of a broker-prepared contract, and the seller’s Realty Transfer Fee and Graduated Percent Fee. What changes is exposure, and the State requires that choice to be made in writing.
What does “off-market” mean?
The term has no statutory definition. In plain words it is a sale without multiple-listing exposure: no MLS entry, no portal syndication, no open house. The same sale is also called a pocket listing or a private listing; each means selling without listing the property on the MLS. The property is offered to individual buyers, one at a time, under a written brokerage agreement.
The Real Estate Commission’s rules start from the opposite default. Under N.J.A.C. 11:5-6.4(f), unless an owner directs otherwise in writing, every licensee must cooperate with every other New Jersey licensee, which includes notifying any multiple listing service to which a listing is to be submitted within 48 hours of the listing’s effective date. The same rule provides the way out, in two forms: an owner “with full knowledge of all relevant facts” may relieve the brokerage of one or more of those requirements in a signed writing attached to the listing agreement, and the Commission prescribes a Waiver of Broker Cooperation for an owner who wants no cooperation at all, which states in the owner’s own voice: “This listing is not to be published in any multiple listing service.” Which instrument a given sale calls for is a question for the seller’s own attorney on the facts of that sale.
Since August 1, 2024 the statute reaches the same point from the other side. A brokerage engaged as a transaction broker by a seller must ensure that the written brokerage services agreement “states whether a notice on the property to be sold will be circulated in a database established to provide data about properties for sale, such as a multiple listing service” (N.J.S.A. 45:15-16.94(b)(2)). An off-market sale is therefore not an informal arrangement; it is the seller’s decision, recorded in the agreement, and any change to that election is made in writing.
What does not change in a private sale?
Privacy changes who sees the property. It changes none of the obligations below, which attach to the sale, not to the marketing.
| Requirement | Rule | In a private sale |
|---|---|---|
| Consumer Information Statement | N.J.A.C. 11:5-6.9(e) | Explained verbally before the first discussion of a seller’s motivation or price, or a buyer’s motivation or ability to buy; the written statement at that meeting or the next; on unlisted properties, no later than the first showing |
| Transaction broker relationship | N.J.S.A. 45:15-16.94; N.J.A.C. 11:5-6.9(h) | Disclosed in writing no later than the brokerage services agreement; the same duties to both parties |
| Seller’s Property Condition Disclosure Statement | N.J.S.A. 45:15-16.87(e) and 45:15-16.94, effective August 1, 2024 | Filled in and signed by the seller; with a transaction broker, handed to the buyer before the buyer is obligated under any contract |
| Flood Risk section | N.J.S.A. 56:8-19.2, P.L. 2023, c. 93 | FEMA flood-zone status and the seller’s actual knowledge of flood risk, on the disclosure statement, before the buyer is obligated |
| Lead-based paint disclosure | 40 C.F.R. § 745.107 | For housing built before 1978: the EPA pamphlet, disclosure of known lead-based paint or hazards, and available records, before the buyer is obligated |
| Attorney review | N.J.A.C. 11:5-6.2(g) | Three business days from delivery of the signed broker-prepared contract; either party’s attorney may disapprove |
| Realty Transfer Fee | N.J.S.A. 46:15-7 | Paid by the grantor, the seller, at recording, per $500 of consideration |
| Graduated Percent Fee | N.J.S.A. 46:15-7.2, as amended by P.L. 2025, c. 69 | When the consideration exceeds $1,000,000, imposed on the grantor as a percentage of the entire consideration, for transfers on or after July 10, 2025 |
| Compensation agreement | N.J.S.A. 45:15-16.96(a) | In writing, signed by the seller or buyer |
The Consumer Information Statement comes first because the rule puts it first: under N.J.A.C. 11:5-6.9(e) the four business relationships are explained before any discussion of a seller’s price or a buyer’s ability to buy, and for a property that is not listed publicly the written statement is delivered no later than the first showing.
B&Co. Realty works as a New Jersey transaction broker. The Commission’s own definition, printed in that statement, is that “A TRANSACTION BROKER DOES NOT PROMOTE THE INTERESTS OF ONE PARTY OVER THOSE OF THE OTHER PARTY TO THE TRANSACTION,” and that such a broker “primarily serves as a manager of the transaction, communicating information between the parties to assist them in arriving at a mutually acceptable agreement and in closing the transaction, but cannot advise or counsel either party on how to gain an advantage at the expense of the other party.” The 2024 statute lists the duties that follow, among them honesty toward all parties, locating qualified buyers for a seller, presenting every written offer promptly, and advising the parties to seek expert advice (N.J.S.A. 45:15-16.94(b)).
The disclosure statement has been a statutory duty on the seller in every residential sale since August 1, 2024. Where the seller works with a transaction broker, the seller must provide the completed, signed statement to the buyer “before the buyer becomes obligated under any contract for the purchase of the property” (N.J.S.A. 45:15-16.87(e), read with 45:15-16.94; Division of Consumer Affairs instructions, August 2024). The Flood Risk section applies to every seller of real property under N.J.S.A. 56:8-19.2, and for pre-1978 housing 40 C.F.R. § 745.107 requires the pamphlet, the disclosure and the records before the purchaser is obligated. None of these rules asks whether the property was advertised. Each is set out at what a New Jersey seller must disclose.
The State’s two charges on the deed are the seller’s in either kind of sale. The Realty Transfer Fee is paid by the grantor at recording under N.J.S.A. 46:15-7; the Division of Taxation states that the seller is statutorily responsible for it and for the Graduated Percent Fee, still called the mansion tax, which P.L. 2025, c. 69 moved to the seller for transfers on or after July 10, 2025. Schedules: seller closing costs.
How B&Co. Realty conducts a private sale
The order matters: the disclosures and the valuation are settled before any buyer is introduced.
- Preparation. The seller receives the Consumer Information Statement and a written brokerage services agreement that records the decision not to circulate the property in a multiple listing service, as N.J.S.A. 45:15-16.94(b)(2) requires. The seller completes the disclosure statement and, where the house predates 1978, the lead-paint disclosure. The firm makes the inquiries and visual inspection N.J.A.C. 11:5-6.4(b) requires of a licensee retained to market a property as a transaction broker.
- Valuation. A private sale has no public market to test a price against, so the valuation carries more weight, not less. The method is comparable selection, adjustment for what recorded prices flatten, and a test against the buyers most likely to want the property: how a home is valued.
- Introductions. Buyers are introduced individually. Each receives the Consumer Information Statement before any discussion of motivation or ability to buy (N.J.A.C. 11:5-6.9(e)), and the disclosure statement before being asked to commit to anything.
- Showings by appointment. The property is shown privately, at times the seller sets. No open house.
- Negotiation as a transaction broker. Every written offer and counteroffer is presented promptly, with written confirmation of receipt, and both parties are kept informed. The firm does not advise either side on how to gain an advantage over the other; each party is advised to obtain its own expert advice (N.J.S.A. 45:15-16.94(b)).
- Contract and attorney review. The firm may prepare the contract of sale for a one-to-four-family home, and every such contract carries the attorney-review clause: three business days from delivery of the signed contract for either party’s attorney to disapprove it (N.J.A.C. 11:5-6.2(g); see the attorney-review reference).
- Closing. Title, the deed, and the Realty Transfer Fee and Graduated Percent Fee collected at recording are handled at settlement in the ordinary way.
When is a public listing the better path?
Privacy has a cost, and the State requires the seller to be told what it is. The Commission’s prescribed waiver form opens with the owner’s acknowledgment: “I UNDERSTAND THAT COOPERATION AMONGST BROKERS PRODUCES WIDER EXPOSURE OF MY PROPERTY AND MAY RESULT IN IT BEING SOLD OR LEASED SOONER AND AT A HIGHER PRICE THAN WOULD BE THE CASE WERE MY BROKER NOT TO COOPERATE WITH OTHER BROKERS” (N.J.A.C. 11:5-6.4(f)4). A public listing puts the property in front of every buyer working with any brokerage; a private sale puts it in front of the buyers one brokerage can reach.
A private sale suits a seller whose first requirement is that the sale not be visible: no MLS entry, no portal syndication, no open house. A public listing suits a seller whose first requirement is the widest pool of offers. A property offered privately can be listed publicly afterwards; the election recorded in the brokerage services agreement is changed in writing.
Is an attorney required to sell a house in New Jersey?
No statute or rule requires a seller or a buyer to retain an attorney. What New Jersey has is attorney review: a right, written into every contract a licensee prepares for a one-to-four-family home, to have an attorney disapprove the signed contract within three business days. The Final Consent Judgment the Supreme Court approved in 1983 says both halves plainly. The right to attorney review “shall not be waived, disclaimed, relinquished or abridged,” and “Nothing contained in this Final Consent Judgment shall require or compel any member of the public-at-large to employ, utilize or seek the assistance of an attorney in connection with the sale, purchase or lease of any residential real estate” (93 N.J. 470, 481, paragraphs 5 and 6). A transaction broker is required by statute to advise the parties to seek expert advice. The choice belongs to the party, in a private sale as in a public one.
This page describes the framework, drawn from the rules, the statutes and the consent judgment, and is not legal advice. Which cooperation instrument a sale calls for, and how a later change of election is recorded, are questions for the seller’s own attorney. Sources reviewed September 14, 2026.