The real estate industry in the U.S. has weathered many permanent changes since it first began. These changes typically have translated to greater protections and transparency for buyers and sellers, and has kept the industry innovating and moving forward.
There are more major changes proposed for the national real estate market this summer, and they could end up affecting everyone. These likely changes are the outcome of a pending settlement in a national class action lawsuit, brought against the National Association of Realtors (NAR) organization by the plaintiffs, a group of home sellers from the Midwest who listed their homes for sale on the MLS (Multiple Listing Service) using real estate Brokers.
In order to try to better understand what’s happening, let’s first break everything down to the basics.
What Is A Real Estate Brokerage?
In order to legally practice real estate in Florida, a real estate agent must have an “active” license, working under a Broker or be the Broker (an experienced agent who’s gone through additional licensing requirements and runs a brokerage) themselves. The Broker and his or her agents all work under the brokerage (real estate company). Among the many well-known national brokerages are RE/MAX, Keller Williams and HomeServices of America, all of which were named in the suits.
Exceptions for those who are able to engage in real estate transactions but who are not under a brokerage are the following — real estate attorneys, agents who are employed by home builders in community sales offices, agents in leasing offices and buyers or sellers who represent themselves in their own real estate transactions.
What Is The NAR?
As real estate records began being tracked in the U.S. around the end of the 1800s, there was inconsistency and dubious practices among some in the profession. To curb the problems, 19 various city real estate boards and the California State Realty Federation organized and created the National Association of Real Estate Exchanges in 1908. That name was later changed to the National Association of Realtors (NAR).
In 1913, the Association adopted its ‘Code of Ethics’ with the “Golden Rule” as its guiding principle. Shortly after, in 1916, the term “REALTOR” was created for those who were members of the National Association and who went through extended training to learn and pledge to uphold its strict code of ethics.
Now, NAR is the largest trade organization in the U.S., with nearly 1.5 million members.
What Is The MLS?
NAR also controls and regulates most of the 800 local and regional Multiple Listing Services (MLS) throughout the country. These MLSs serve as the primary databases where information (including photos) about current local real estate for sale or rent is uploaded, listed and then shared with potential buyers. Popular websites like Zillow.com and Homes.com (photo above) pull most of their information from MLS.
From very early on, in order to list on an MLS, NAR required a written listing agreement, which meant that the seller would specify who (which Broker or agent) could list his or her property and the specific commissions that would be paid, and to whom, in order to avoid later disputes and build trust among those in the early profession.
This early requirement stuck. The commissions are currently either specified in the listing agreement as a percentage of the total sale price, or as a flat dollar amount.
What Happened With The Case?
Previously, NAR’s “Participation Rule” required that for a property to be listed on MLS at all, some compensation (even as little as $1) must be offered to the buyer’s agent. The plaintiffs in the case claimed that some of the nation’s largest real estate brokerage firms used this rule to collude with NAR to fix prices and artificially raise the amount of home sale commissions, even though commissions had always been negotiable.
The jury sided with the plaintiffs at the end of last October (2023), and awarded them approximately $1.8 billion in damages. After the ruling, NAR immediately changed its Participation Rule so that seller listings could offer as little as $0 commission to a buyer’s agent, and in November, Stellar MLS (the local MLS that covers the entire Tampa Bay area) updated its rules and regulations so the local system could accept $0 in that commission input field.
When Was The Settlement Reached?
On March 15, 2024, a smaller settlement in the amount of $418 million was reached between the parties. According to Katie Johnson, the chief legal officer of NAR, “This settlement would resolve the claims brought against NAR.” This settlement is the document all parties agreed to, but this isn’t the end. Johnson stated that, “Like all settlements of class action litigation, it is subject to court approval.”
What this means is that the proposed settlement terms and changes to real estate policies might not take effect until July of this year, at the earliest.
The settlement also came with a cap, meaning only large brokerages with residential transaction volumes of $2 billion or more in 2022 were liable to pay into the settlement fund, and ones with volumes below $2 billion were released from liability. The brokerage HomeServices of America, however, chose to not participate in the settlement, and has now become the lone defendant, wanting to fight it out and take its chances, potentially pushing the case to the U.S. Supreme Court.
What Are The Proposed Changes?
There are two primary changes that will affect the entire real estate landscape:
From the Stellar MLS public website:
1. “Compensation offers moved off the MLS: NAR has agreed to put in place a new rule prohibiting offers of compensation (to be listed) on the MLS.” As was mentioned before, NAR had already changed its policy to allow for offers of $0 compensation to the buyer’s agent on the MLS, but currently, most sellers are still opting to include some type of commission in that field. But, this change would strictly prohibit ANY commission being offered in the MLS listing at all.
The intent was to level the playing field to make sure there was no steering, so buyers’ agents would show them every potential house, regardless of the commission, because they wouldn’t know what it might be up front, as they historically have been able to know.
This doesn’t prohibit the agents from negotiating concessions behind the scenes, but the hope and goal of the settlement was that increasing negotiations at this step, and at the initial written representation agreements (see below), would overall reduce total commissions paid nationwide, saving consumers money.
Also from Stellar MLS public website:
2. “Written agreements for MLS participants acting for buyers: MLS participants [agents/Brokers] working with buyers will be required to enter into written representation agreements with their buyers.”
These written and signed agreements are typically known as Buyer Agency Agreements and specifically might be referred to as Exclusive Buyer Broker Agreements (EBBA), which are already required in more than a dozen states, but are optional in the rest. These are meant to ensure that home buyers know in advance what their agent will charge for their services, if the seller doesn’t offer concessions to compensate them.
Also, the seller may still offer concessions, but instead of a commission being paid directly to the buyer’s broker from the seller (like it had been traditionally done in the past), a concession might go to the buyer, and then the buyer would pay their agent the rate listed in the agreement. So, if the seller were offering 2% concessions, but the agreement between the buyer and their agent was 3%, then the buyer may have to come up with the remaining 1% themselves.
This, of course, could cause the buyer to reconsider that particular property or take concessions more into consideration, now that they might have to participate in paying for their real estate agent’s services.
What Are The Concerns?
This settlement has caused concern for certain categories of home buyers who may be at a disadvantage, given current restrictions and budgets. For example, a first-time home buyer with less buying power might be more swayed by certain properties based solely on the concessions they are offering in order to pay their agent, and sellers may not even entertain the buyer’s offers if they ask for too much in concessions.
Other buyers who might be affected more than others are those who may use Veterans Administration (VA) loans, which are reserved for U.S. Armed Forces active duty service members, veterans, reservists, or their surviving spouses (under certain circumstances) that meet the minimum active-duty service requirements set forth by the U.S. Department of Veteran Affairs. Many buyers who qualify might choose to use a VA loan over other types of loans because the terms are typically much better.
However for VA loans, current restrictions on certain fees would not be compatible with the proposed national change. On March 27, NAR president Kevin Sears wrote a letter to the VA and shared his concern about this, stating, “In this exceedingly competitive market, we are concerned that the VA’s current policies place veterans at a significant disadvantage compared to traditional buyers. Under VA policies, buyers using their home loan benefit are prohibited from compensating their professional representative directly. In situations where no offer of compensation is offered from a seller, VA buyers are immediately at a disadvantage, potentially forcing them to forego professional representation, lose a property in an already limited inventory, choose a different loan product, or exit the market entirely.”
No one knows exactly what this all will look like moving forward, or what things will have to change in order to make it all work, but there is a timid yet optimistic outlook from real estate professionals that things will work out for the best, as they have many times in the past.
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