You may have seen the recent headlines about the U.S. Department of Justice (DOJ) having filed an antitrust lawsuit alleging the National Association of REALTORS® (NAR) maintained illegal, anticompetitive restraints on REALTOR® competition, including business practices and policies that prohibited multiple-listing services from disclosing commissions for buyers’ agents to prospective buyers.
The Justice Department accused NAR, the real estate industry’s largest trade group with more than 1.4 million members and 1,400 local associations, with restraining free trade under the Sherman Act, thus creating an environment in which there was little visibility for homebuyers to learn about the commission a buyer’s agent would earn.
This announced action sounds alarming.
However, with a look past the headlines, you will see that the current settlement between the DOJ and NAR, which was announced at the same time as the antitrust complaint filing, means that future outcomes are expected to trend positive for our real estate profession.
According to NAR, who maintained that there was no wrongdoing committed, the settlement requires the following changes in the way in which REALTORS® compete:
#1. Public display of buyer broker compensation.
“The amount of compensation offered to a buyer’s agent for each MLS listing will be made publicly available. Publicly accessible MLS data feeds will include offers of compensation, and buyers' agents will have an affirmative obligation to provide such information to their clients for homes of interest.”
#2. Consumer access to all properties that fit their criteria.
“MLSs and brokerages, as always, must provide consumers all properties that fit their criteria regardless of compensation offered or the name of the listing brokerage.”
#3. Forbidding buyers’ agents from representing services as “free.”
“While NAR has long encouraged buyers' agents to explain how they expect to be paid, typically through offers of cooperative compensation from sellers' agents, there will be a rule that more definitively states that buyers' agents cannot represent that their services are free to clients.”
#4. Lockboxes and licensed agents.
“With the seller's prior approval, a licensed real estate agent will have access to the lockboxes of properties listed on an MLS even if the agent does not subscribe to the MLS.”
“For the most part, these changes more explicitly state what already is in the spirit and intent of the NAR Code of Ethics and MLS policies regarding providing information about commissions and MLS participation,” said Robert Cromer, 2020 PSAR President. “PSAR has long sought to ensure fairness, transparency and a competitive real estate market for home buyers and sellers. We have always been committed to an MLS system that puts consumers first and benefits homebuyers, sellers and brokerages.”
According to a statement from Makan Delrahim, Assistant Attorney General of the Justice Department’s Antitrust Division, “Buying a home is one of life’s biggest and most important financial decisions. Home buyers and sellers should be aware of all the broker fees they are paying. Today’s settlement prevents traditional brokers from impeding competition, including by internet-based methods of home buying and selling, by providing greater transparency to consumers about broker fees. This will increase price competition among brokers and lead to better quality of services for American home buyers and sellers.”
The California Regional Multiple Listing Service (CRMLS) said in a statement, “CRMLS plans to fully comply with the terms of this government-mandated agreement, once finalized. Visit www.go.CRMLS.org/NewRules to keep up to date on how CRMLS will implement these rules.”
Inman News Service posted recent news articles covering possible disruptive consequences from the DOJ lawsuit and proposed settlement. These consequences include:
-- Commissions may be squeezed since consumers will have more visibility into options when choosing which real estate brokerage or agent with whom to work.
-- MLSs can no longer hide commission rates.
-- REALTORS® will not be allowed to set a filter in the MLS for homes for potential buyers based on commission levels.
-- Buyers’ agents cannot make misrepresented statements, for example, “My services are free” (because they aren’t free if the seller pays the commission).
-- A licensed agent cannot be denied lockbox access on the basis of not being an MLS member.
The DOJ-NAR settlement is not yet final as the DOJ is still receiving public input. A DOJ statement said comments regarding the proposed final judgment may be submitted to Chief, Office of Decree Enforcement and Compliance, Antitrust Division, U.S. Department of Justice, 950 Pennsylvania Ave., N.W., Washington, D.C., 20530. The DOJ also stated, “At the conclusion of the 60-day comment period, the court may enter the proposed final judgment upon a finding that it serves the public interest.”