National Association of Realtors

Judge approves real estate commissions settlement

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Late in 2023, this blog discussed multiple class action lawsuits across the United States attempting to hold brokerage companies responsible for conspiring to keep residential real estate commissions artificially high. We have a development.

A Federal judge in Missouri said on October 31 that he will approve a $110 million settlement with nine brokerage companies. In May, a similar $208 million settlement was approved. And two more orders are expected in November, when the same judge weighs a pair of settlements against the National Association of Realtors and HomeService of America.

This blog also discussed last November that a similar class action was brought in South Carolina. Dirt lawyers, I would love to know what you are seeing in your markets. Are commissions now being negotiated to avoid the potential liability? I’d love to hear what’s going on out there.

South Carolina Realtors sponsors excellent Zoom meeting

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Rule changes resulting from NAR class action settlement discussed

South Carolina real estate lawyers were invited to an excellent Zoom meeting on August 20 sponsored by South Carolina Realtors. The meeting was advertised on the South Carolina Bar’s Real Estate section listserv. Nick Kremydas of that organization and Gary Pickren, founding member of Blair Cato Law Firm, addressed the changes residential real estate lawyers should expect as a result of the National Association of Realtors class action settlement. South Carolina dirt lawyers owe a huge thank you to these two well-informed lawyers who, in addition to speaking and answering questions on the topic, offered their email addresses for the purposes of fielding further questions. *

According to the settlement, as of August 17, NAR affiliated residential multiple listing services can no longer accept listings that indicate the amount or percentage of the seller’s commission that will be paid to the buyer’s broker.  There is no requirement that a buyer be represented by a separate broker, and for many years, buyers typically had no representation. But in recent years, buyers’ agents have routinely been employed, and it is clear that some other method must be worked out for their payment.

The speakers initially stated that the MLS entities in South Carolina have complied with the August 17 deadline, but there was a brief mention that Hilton Head may be an exception. Some brokers are drafting “showing agreements” or “touring agreements” to comply with the rule that a buyer must agree to commissions prior to seeing houses.

The implementation of the changes in practice has fallen to the state level, which makes sense because state laws are not consistent on the related issues. Gary Pickren said implementation may be somewhat of a moving target as the market begins to dictate what will occur. It is important to remember, he said, that only sixty percent of real estate agents are NAR-affiliated Realtors, so all agents are not currently required to comply. As a practical matter, however, agents will have to comply because they use the MLS services. In addition, according to Gary, future lawsuits are always a possibility, so that threat will encourage compliance by everyone in the marketplace.

Gary pointed to three ways buyers’ agents may be compensated:

  1. Direct Payment: The seller will pay the seller’s agent and the buyer will pay the buyer’s agent. Gary sees this method being applicable with higher-priced homes. Settlement Statements will simply reflect a charge for the seller and a charge for the buyer.
  2. SC Realtor Form 120: This form is a compensation agreement. The seller will enter into an agreement with the listing agent to pay $X to the listing agent and to authorize the listing agent to pay $Y to the buyer’s agent. The Settlement Statement will reflect both charges to the seller, exactly as we have shown these charges in recent years.
  3. Contract Concessions: In addition to the normal concessions for closing costs, sellers may make concessions for commissions. Settlement Agreements will reflect the seller’s charge for the listing agent’s commission, the buyer’s charge for the buyer’s agent commission, and a credit from the seller to the buyer for the concession.  There may be some concern here with regard to appraisals and lender limitations on concessions. Closing attorneys will have pay particular attention to these issues.

In addition to these three methods, some brokers are drafting their own documents to handle commissions in different ways.

Gary questioned how the new rules will be policed and indicated closing attorneys may have additional liability in this regard with no additional payment. We have all seen that our Supreme Court seems to place the liability for the accuracy of closing statements directly on the shoulders of closing attorneys. He said he does not feel closing attorneys will have to review MLS listings, but they may ask to see the Forms 120 and they require have the parties sign separate documents addressing the accuracy of the commissions reflected on the Settlement Statement.

Gary indicated the Real Estate Commission has no jurisdiction to police these issues, but the MLS services and the local Realtor Associations may implement rules with fines, commission forfeitures and even suspensions and bans from using the MLS services.

I want to personally thank Nick and Gary for providing this service for all of us. It appears to me that their thinking and their willingness to educate the Bar may place South Carolina lawyers ahead of lawyers in other states. Based on the reading I’ve done from a national standpoint, it appears the answers to these issues are still very mysterious in some locations.

*I won’t offer up the email addresses, but lawyers know how to find each other!

Department of Justice can reopen investigation of National Association of Realtors

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I was in Washington D.C. last week with one husband and four grandchildren under 12. To see as much as we could, we walked about ten miles per day. One day, we passed the Department of Justice and the National Association of Realtors. Coincidentally, on that same day, I received word from the Chicago Title office in Columbia that the D.C. Circuit Court had ruled that the DOJ’s Antitrust Division can reopen its investigation against the NAR.

This investigation dates back to a 2005 lawsuit challenging the NAR’s operation of its multiple-listing services (MLS). The suit claimed that internet competitors and their clients were blocked from having full access to listings. This practice, the lawsuit claimed, reduced competition and kept real estate agents’ commissions high.

The parties entered into a settlement in 2008, which expired in 2018. The DOJ began its investigation again and issued two subpoenas to the NAR. One subpoena sought information about the NAR’s “participation rule” which requires listing brokers to offer the same commission to all buyer brokers using the MLS. The other subpoena sought information about the NAR’s “clear cooperation policy”, which requires listing brokers to post properties on the MLS within one day of the beginning of marketing. The DOJ claimed both policies limited competition.

In 2020, the parties agreed to a Consent Judgment. This document contained a reservation-of-rights provision that allowed the DOJ to continue to investigate and bring additional litigation. The settlement documents did not mention the participation rule or the clear cooperation policy. But the DOJ sent a letter to the NAR stating it had closed its investigation into those two rules and that the NAR was not obligated to respond to the subpoenas. The letter contained a no-inference clause providing that no inference could be drawn from the closing of the investigation.

In 2021, after unsuccessfully attempting to renegotiate the reservation-of-rights clause, the DOJ withdrew the Consent Judgment. The DOJ also dismissed the complaint and issued new subpoenas. The NAR petitioned the Circuit Court to set aside one of the subpoenas on the grounds that it breached the settlement agreement. The Court agreed. A two-judge panel of the Court reversed, relying on the “unmistakability” principle, which requires courts to refrain from interpreting a contract to cede a sovereign right of the United States unless the government waives that right unmistakably. The no-inference clause, according to the court, explicitly disclaims that intent.

The Court allowed the investigation to continue but expressed no opinion about whether any laws have been violated by the NAR. This case is different from recent actions claiming the NAR’s policies on commissions are anti-competitive.  We can expect much more litigation involving the NAR.

Update on NAR broker compensation litigation

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This blog has previously discussed the March 15 proposed settlement by The National Association of Realtors (NAR) of four large antitrust suits involving buyers’ broker commissions. The monetary settlement was set at $418 million. The settlement also involves a new rule prohibiting offers of compensation to buyers’ brokers on the MLS.

There is movement in a related matter between the NAR and the U.S. Department of Justice (DOJ). Last month, a District of Columbia Circuit Court of Appeals panel of judges reversed a lower court decision to set aside a 2021 investigative subpoena from the Antitrust Division of DOJ. That subpoena had been issued in a previously closed investigation into NAR commission policies.

This ruling effectively held that a case being previously closed does not prevent its being reopened, allowing the DOJ to continue its antitrust investigation.

Several news sources are reporting that in a status hearing in a Massachusetts case, the DOJ made its first public comment since the NAR settlement this week. An attorney for the DOJ apparently stated that the DOJ believes offers of compensation to buyers’ agents should not be made anywhere, and certainly not on the MLS.

This dirt lawyer does not have the legal ability to discuss the antitrust issues involved in this litigation. The speculation about how this settlement will ultimately affect the housing industry is widely varied among experts in several professions.

The impetus for the original complaints was to lower housing costs artificially inflated by commissions which seem to be set in stone at six percent. Some experts suggest that our housing market will be completely remodeled, with the end product being lower home prices.

Other experts suggest that buyers will be crippled by having to either forego the assistance of a real estate agent or by agreeing to pay commissions out of pocket. Some of these writers suggest that home prices will increase as a result of these machinations. I’ve even heard that only wealthy buyers will have broker representation.

I’ve seen several suggestions that home buying will remain virtually the same by use of several work arounds. But I’ve seen other experts suggest that the proposed work arounds may also violate antitrust laws.

Some suggest that buyers, sellers and real estate agents will simply negotiate commissions.

One thing that is not in question is that the settlement must be approved in court. The settlement suggests that the new rules will become effective in July, but settlements in these large cases often take months to approve, so I wouldn’t be surprised to see delays beyond this summer.

The industry may be in transition as all the experts digest the settlement and as we await court approval. There is no shortage of articles on the topic. I encourage dirt lawyers to keep their fingers on the pulse of these issues as the litigation dust settles. Any activity from the DOJ will be particularly noteworthy.

National Association of Realtors announces $418 million settlement

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The National Association of Realtors (NAR) announced a proposed settlement on March 15 of four large antitrust suits involving buyers’ brokers commissions. The monetary settlement is set at $418 million. The settlement also involves a new rule prohibiting offers of compensation to buyers’ brokers on the MLS.

This dirt lawyer does not have the legal ability to discuss the antitrust issues involved in these lawsuits. The speculation about how this settlement will ultimately affect the housing industry is widely varied among experts in several professions.

The impetus for the original complaints was to lower housing costs artificially inflated by commissions which seem to be set in stone at six percent. Some experts suggest that our housing market will be completely remodeled, with the end product being lower home prices.

Other experts suggest that buyers will be crippled by having to either forego the assistance of a real estate agent or by agreeing to pay commissions out of pocket. Some of these writers even suggest that home prices will increase as a result of these machinations.

I’ve seen several suggestions that home buying will remain virtually the same by use of several work arounds. But I’ve seen other experts suggest that the proposed work arounds may also violate antitrust laws.

Some suggest that buyers, sellers and real estate agents will simply negotiate commissions.

One thing that is not in question is that the settlement must be approved in court. The settlement suggests that the new rules will become effective in July, but settlements in these large cases often take months to approve, so I wouldn’t be surprised to see delays beyond this summer.

This blog earlier discussed the $1.8 billion verdict in federal court in Missouri against the NAR and two brokerage firms. Other lawsuits followed this verdict, and this settlement intends to bring all the suits to a conclusion.

The industry may be in transition as all the experts digest the settlement and as we await court approval. There is no shortage of articles on the topic. I encourage dirt lawyers to keep their fingers on the pulse of these issues as the litigation dust settles.

Western District of Missouri approves commission settlement

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This update furthers my effort to keep South Carolina dirt lawyers up to speed on the real estate agent commission cases that are proceeding through courts across the country. HousingWire is reporting that a judge in the Western District of Missouri has preliminarily approved a settlement with two corporate broker firms, RE/MAX and Anywhere Real Estate.

According to the article dated November 21, RE/MAX will pay $55 million, and Anywhere Real Estate will pay $83.5 million.

Settlement agreement provisions include no longer requiring agents to be members of the National Association of Realtors and that the brokerage firms will require or encourage agents to make it clear that commissions are negotiable. Agents will also have the flexibility to set or negotiate commissions as they see fit.

The parties are required to contact the court to schedule a final approval hearing before December 22.

Last week’s blog spoke to Housingwire’s November 10 article that Sauntell Burten has filed a lawsuit in the U.S. District Court for South Carolina alleging that the National Association of Realtors and Keller Williams colluded to artificially inflate agent commission rates.

The plaintiff is seeking class action status for all home sellers in South Carolina who have sold a home on the MLS with a Keller Williams agent since November of 2019. The 107-page complaint states that NAR’s “clear cooperation” policy leads to the commission problem because that policy requires agents to provide a blanket offer of compensation to the buyer’s agent to list a property on the MLS.

Real estate lawyers, let me know if you hear local updates on this situation.

SC joins states where real estate commissions are being litigated

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This blog recently discussed the Missouri class action by residential real estate sellers against the National Association of Realtors (NAR), a real estate agent trade association, and several real estate agent entities, which resulted in a judgment of $1.8 billion. The plaintiffs argued that commissions are rarely negotiable and that the seller is required to pay commissions for both sides of transactions

A South Carolina lawyer posted on a listserv I read on the subject that litigation like this wouldn’t happen in South Carolina because standard residential contracts leave a blank for the percentage of the buyer’s agent’s commission. This poster was, sadly, wrong.

Housingwire reported on November 10 that Shauntell Burton has filed a lawsuit in the U.S. District Court for South Carolina alleging that the NAR and Keller Williams colluded to artificially inflate agent commission rates. You can read the story here.

The plaintiff is seeking class action status for all home sellers in South Carolina who have sold a home on the MLS with a Keller Williams agent since November of 2019. The 107-page complaint states that NAR’s “clear cooperation” policy leads to the commission problem because that policy requires agents to provide a blanket offer of compensation to the buyer’s agent to list a property on the MLS.

Apparently, similar suits are being brought in multiple states.

Dirt lawyers, what do you think about this? Is Keller Williams the only broker involved in the practice, or will other brokers be named in the future? Is it your experience that commissions paid by sellers to buyers’ agents are negotiated, as the poster mentioned above suggested? I’d love to hear your thoughts and learn from your experience.

Real estate agents’ commissions could be at issue nationwide

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Missouri jury delivers a $1.8 billion judgment

Halloween brought a scary judgment in a Missouri class action by residential real estate sellers against the National Association of Realtors (NAR), a real estate agent trade association, and several real estate agent entities. The judgment of $1.8 billion will surely be appealed all the way to the Supreme Court. Appeals may take several years to be completed.

The sellers argued that commissions are rarely negotiable, and that the seller is required to pay commissions for both sides of transactions. I heard a seller interviewed by Lester Holt on NBC Nightly News on November 1. He said that he must pay commission to a real estate agent he never met, will never meet and who did no work for him.

The plaintiffs also argued that this commission structure keeps home prices artificially high.

At least two real estate agent entities settled for large sums prior to the judgment. And similar lawsuits are pending in other jurisdictions.

Dirt lawyers, how do you project this suit may ultimately affect our industry? I wonder if any type of injunction will be put into place pending appeal. I wonder whether the Department of Justice will see the necessity to become involved. I wonder whether commissions will ultimately become negotiable and whether buyers will be required to pay their agents up front or at closing. If that happens, I can imagine extensive negotiations with sellers to pay more of their buyer’s closing costs than customary. I even wonder whether buyer agents may become obsolete.

Let me know what you think!

Have you heard about “Zillow Offers”?

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It’s not available in South Carolina yet, but it may be a matter of time

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In early 2017, Zillow tipped its toe into the process of selling homes by launching a product it called “Instant Offers”. The product was initially tested in Las Vegas and Orlando and was described as a method for homeowners to sell their homes for a discounted price without the traditional complications of repairing, listing, staging and allowing for open houses.

The process started with a homeowner providing basic information via Internet about the home (square footage, number of bedrooms and bathrooms, and remodeling information) and uploading photos. The Zillow product then connected the homeowner with investors who buy homes in the area, and, typically, an all-cash offer was made by one or more of the investors. The homeowner paid no fee for the service and was not obligated to accept any offers. Zillow touted the product as a method to alleviate the seller’s stress and to allow the seller to close in a shorter timeframe.

Other companies, OpenDoor and OfferPad were already operating in this space at the time of the Zillow launch. The launch was called another example of technology disrupting the process of closing real estate transactions.

Real estate agents, of course, met the news with alarm. They said sellers would be suckered into making mistakes that might cost them the education of their kids, vacations or just the ability to sleep better at night because they have more money in their bank accounts. An online petition was initiated, asking the National Association of Realtors to threaten Zillow with being removed from access to listings. The NAR responded that it could not sponsor or encourage such a boycott.

Zillow has always stated publicly that it is not in the business of getting rid of real estate agents. Its executives called Zillow a media company, not a real estate company, and said it sold ads, not real estate. Even the Instant Offers program encouraged sellers to use a realtor even while avoiding the traditional listing and sales process. The question then became the amount of commission the real estate agent would earn for reduced services. When real estate agents initially complained about Instant Offers, Zillow responded that 70% of its revenue came from working with real estate agents.

In early 2018, however, Zillow announced that it would begin buying homes directly from sellers and then turning around and selling them. With this announcement, Zillow began selling ads and houses. Two test markets were announced, Las Vegas and Phoenix. Zillow said that when it buys homes, it will make the necessary repairs and updates and list the homes as quickly as possible. Zillow said local real estate agents would represent Zillow in the transactions. Zillow also announced in a press release that the vast majority of sellers who requested an Instant Offer ended up selling their homes with agents.

The program was later launched in several other markets, Phoenix, Atlanta, Denver and Charlotte. And last week, Zillow announced that it would be expanding to Miami, Minneapolis-St. Paul, Nashville, Orlando and Portland in 2019. So far, nothing is in the works for South Carolina as far as we know, but I did get a kick out of one article that referred to one of the markets as “Charlotte, South Carolina”.

Stay tuned for more news on this topic. Real estate lawyers will need to figure out how to remain in the game whether properties are sold through the Internet or not!

Good news during Thanksgiving week for real estate agents…and us!

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Many real estate lawyers rely on their local real estate agent friends for the bulk of their residential closing business. When business is good for them, it’s good for us! Two recent stories in national publications are good signs for all of us.

First, an article from Housing Wire dated November 12, which you can read here, indicates more Americans are using real estate agents than ever before, including Millennials. The article cites a Harris Insights housing consumer study, which shows a full 90% of consumers use real estate agents to buy and sell their homes. These numbers are higher than those shown in previous similar studies, up 5 points from 2014 and 9 points from 2001.

We have all assumed that Millennials, ages 18 – 34, are replacing real estate agents with technology, but this study found the 91% of them use real estate agents in their transactions. According to this article, that number is higher among the Gen X group, ages 35 – 44, at 94%.

Surprising to me, this study indicates the older generations are more likely to cut real estate agents out of their transactions. Only 81% of consumers ages 55 and older indicate they use real estate agents in their transactions. And, apparently, more educated consumers enjoy the use of real estate agents in buying and selling their homes. High school graduates reported 83% use, while college educated consumers reported 94%. Higher income earners were also more likely to use real estate agents (98% of $75,000 – $100,000 earners vs. 79% of $50,000 or less earners.)

Read the article and the underlying study for more insight.

The second article that caught my attention is from Realtor Magazine on November 7. This article, entitled “Big Night of Midterm Wins for Realtors®”, reported that candidates across the country at federal, state and local levels won elections with the promise to benefit the real estate industry’s goals of strong communities and healthy residential and commercial property markets.

This article reports that the National Association of Realtors® supported hundreds of candidates they considered to be real estate champions, regardless of party affiliations.

It’s budget time for me, and our company is predicting a slight softening of residential and commercial markets in 2019. This positive news for our real estate agent partners makes me feel better about the year to come!

Here’s wishing everyone a very happy Thanksgiving with family and friends!