As background, National Association of REALTORS ("NAR") Recently entered into a settlement agreement for a class-action lawsuit, alleging unfair practices, much of which involved real estate buyers' agents' comissions being determined by the seller of a property and paid through the listing brokerage. The lawsuit also alleged that other NAR practices and policies, such as allowing only MLS members to access lockboxes, restricted competition. NAR and many member brokerages, such as COMPASS, agreed to settle this lawsuit, without admitting fault, with settlement payments and by instituting the following practices, which impact our clients.
1. Settlement Payments.
If you sold a house listed in MLS after October 31, 2019, you may be entitled to a settlement payment, reportedly averaging around $13. You can call 888-995-0207 for more information on whether you are part of the class and entitled to a payment.
2. Compensation Offers Moved off the MLS.
NAR has agreed to put in place a new rule prohibiting offers of buyer-agent compensation on any MLS. Offers of compensation to buyer-agents will continue to be an option that consumers can pursue off the MLS in any of 3 ways:
- for sellers, commissions offered through their listing agents' communications with buyers' agents, other non-MLS websites, and other non-MLS marketing materials,
- for buyers, commissions offered in the buyers' representation agreement, and
- for both buyers and sellers, commissions negotiated with each other in the purchase contract, in consultation with their real estate professionals.
Commissions were always negotiable, but it is now express that buyer-agents may be compensated in a variety of ways. While sellers cannot mention buyer-agent compensation in the MLS, they still may offer buyer concessions on an MLS (for example—concessions for buyer closing costs).
This change will be mandatory starting August 17, 2024.
3. Written Agreements for MLS Participants Acting for Buyers.
While NAR has advised the use of written buyer agreements for years, in the settlement, NAR has agreed to require all MLS Participants working with buyers (buyer-agents) to enter into written agreements with their buyers before touring any home. This means that all buyers will be required to sign a buyer representation and compensation agreement with their buyer-agent to see any property, including virtually. This will not apply to a potential buyer simply viewing at an open house, but the minute a buyer begins "working with" an agent, including a listing agent, this rule will apply.
This change will be mandatory starting August 17, 2024.
It appears that this lawsuit is attempting to shift the buyer agent commission from where it traditionally has been, with the seller, to the buyer. However, as a practical matter, the buyer is the only party bringing money to the table, so they were already paying the buyer-agent commission as part of the purchase price of the property. When paid directly by the buyer, the buyer-agent commission cannot currently be part of the amount financed by the buyer. This can be a detriment to many buyers, who may not have enough cash for both down payment and commissions. This could result in some buyers refusing to see and/or offer on homes where the buyer-agent commission is not offered, to the detriment of these sellers. Other buyers could go unrepresented, to their detriment, which is the consumer protection reason that cooperating compensation was originally instituted.
4. NAR Continues to Deny any Wrongdoing.
NAR has long maintained—and we continue to believe—that cooperative compensation and NAR’s current policies are good things that benefit both buyers and sellers. They promote access to property ownership, particularly for lower- and middle-income buyers who may have a difficult-enough time saving for a down payment, and who may not be able to pay buyer-agent compensation unless it is part of their financing. It is also beneficial for buyers to have an experienced agent, with a fiduciary duty to them, who has their interests at heart and can help them locate neighborhoods, properties, and navigate their way through a complex, high-dollar-value transaction. Moreover, when sellers pay buyer-agent commission, they will expand their market of eligible buyers. Certainly, buyers will also factor whether they are paying buyer-agent commissions into the total purchase price they are willing to pay seller for a home, so sellers not offering compensation may predictably fetch lower prices for their homes..