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Unpacking the NAR's Proposed Settlement in Major Antitrust Cases

The National Association of Realtors (NAR) has announced a proposed settlement in the significant antitrust cases known as Sitzer/Burnett and Moehrl. This settlement aims to address claims related to real estate broker commissions and the functioning of Multiple Listing Services (MLS). Here's an in-depth exploration of the key elements of the proposed settlement and its implications for the real estate industry.


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In this article:



Release of Liability

Under the proposed settlement, a vast majority of NAR members, all state and local REALTOR® associations, association-owned MLSs, and brokerages with an NAR member principal who had a residential transaction volume in 2022 of $2 billion or less, would be released from liability in the Sitzer/Burnett and Moehrl cases. This is a significant development, providing a layer of legal protection to a wide swath of the real estate industry.



Compensation and MLS Changes

A notable change is the prohibition of compensation offers on the MLS, effective from mid-July 2024. While this shifts the negotiation of offers of compensation off the MLS, the agreement allows for various forms of buyer-broker compensation to continue through negotiation, including fixed-fee commissions, à la carte services, and seller concessions, ensuring flexibility and negotiation power remains in the hands of consumers and their agents.





Written Agreements with Buyers

Another significant change requires MLS participants working with buyers to enter into written representation agreements. This move, slated for implementation around mid-July 2024, aims to enhance transparency and clarity between buyers and their agents, ensuring buyers are well-informed about the services and value they will receive.



Settlement Payment

NAR has agreed to a settlement payment of $418 million over the next four years, subject to court approval. This substantial amount reflects the gravity of the litigation and NAR's commitment to resolving these claims.



Coverage and Exceptions

The proposed settlement covers over one million NAR members, all state/territorial and local REALTOR® associations, association-owned MLSs, and brokerages with a residential transaction volume of $2 billion or below in 2022. However, it excludes those with a volume over $2 billion, agents affiliated with HomeServices of America and its related companies, and employees of other corporate defendants still involved in litigation.



Implications and Future Steps

The settlement's implications are far-reaching, potentially reshaping how compensation is negotiated and communicated within the real estate industry. It preserves consumer choice in real estate services and how they engage with professionals, all while aiming to enhance transparency and understanding in buyer-agent relationships.


The settlement is now awaiting court approval, a process that can take several months and includes opportunities for objections and opt-outs, common in large class action cases. During this period, NAR seeks to pause related litigation pending the settlement's approval.


Impact on the Traditional 6% Commission Structure

The traditional approach in real estate transactions involved the seller paying a commission to the listing agent, who would then share a portion of this commission with the buyer's agent. This customary practice often led to a "standard" commission rate, frequently around 6%, although the actual rate has always been negotiable. It's important to note that sellers have always had the flexibility to sell their properties independently or negotiate different commission rates, whether opting for a lower percentage or a fixed flat rate.


Under the proposed settlement, the direct listing of compensation offers on the MLS for buyer's agents will cease, allowing sellers more discretion in determining if and how they wish to compensate the buyer's agent. This could be outside the MLS framework, such as through a concession. Consequently, there may be scenarios where the buyer needs to compensate their agent directly, potentially out of pocket. This shift encourages more open negotiations around agent compensation and moves away from the presumption of a "standard" commission rate, fostering a more tailored approach to each transaction.


For Buyers: Understanding the New Landscape


Enhanced Transparency and Clarity

The proposed settlement mandates that MLS participants working with buyers must enter into written representation agreements. This ensures buyers are fully informed about what services they can expect and the associated costs. It fosters a transparent relationship between buyers and their agents, clarifying the value and services provided in exchange for compensation.


Diverse Compensation Options

Although offers of compensation will no longer be visible on the MLS, the settlement does not restrict the negotiation of buyer-broker compensation. Buyers can still engage in discussions with their agents about compensation structures that best suit their needs, including fixed-fee commissions, seller concessions, or a portion of the listing broker's compensation. This flexibility allows buyers to tailor the services and payment models to their unique buying experience.


Empowered Negotiations

Without MLS-listed compensation offers, buyers and their agents may find themselves in a stronger position to negotiate compensation based on the value and services provided. This could lead to more personalized service agreements and potentially more competitive pricing, as compensation becomes a direct negotiation between the buyer and their agent.


For Sellers: Navigating the Adjusted Rules


Continued Flexibility in Offers

Sellers retain the ability to offer buyer broker compensation as an incentive, but these offers will move off the MLS platform. This change encourages direct negotiation and could lead to more strategic discussions about how compensation offers can be used to attract buyers and their agents.


Concessions and Incentives

The settlement expressly allows sellers to communicate concessions, such as covering buyer closing costs, through the MLS. These concessions are a valuable tool for sellers to make their properties more attractive to potential buyers, provided they are not conditioned on the use of or payment to a buyer broker.


Market Dynamics

The removal of compensation offers from the MLS might initially require adjustments in how sellers and their listing agents position their properties in the market. However, the ability to negotiate and offer diverse forms of compensation could lead to more innovative selling strategies and potentially broaden the appeal of listings to a wider audience of buyers and agents.



Conclusion

In summary, the proposed settlement marks a significant moment in the real estate industry, with potential long-term impacts on how real estate transactions and broker compensation are managed. It reflects a compromise that maintains some industry practices while introducing new rules to foster transparency and consumer choice. As the settlement process unfolds, it will be essential for all parties involved to stay informed and prepared for the changes ahead.



FAQs: NAR's Proposed Settlement in Antitrust Cases


What is the proposed settlement about?

The proposed settlement addresses claims in the Sitzer/Burnett and Moehrl antitrust cases concerning real estate broker commissions and the use of Multiple Listing Services (MLS). It involves changes to how compensation is offered and negotiated in real estate transactions.

Does this mean no more 6% commission?

How does the proposed settlement affect compensation offers on the MLS?

What changes are introduced for written agreements with buyers?

How much is NAR agreeing to pay in the settlement, and over what period?

Are there any exceptions to who is covered by the proposed settlement?

What does the proposed settlement mean for buyers?

How are sellers affected by the proposed settlement?

What happens next with the proposed settlement?

How will this settlement impact the real estate industry?


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