How the real estate industry is going to be turned upside down and why sellers may no longer have to pay buyer agents

Let me begin by saying that I’m not a sensationalist, nor am I an advocate for everything I write about.  Additionally, I am not an attorney, so this not a legal opinion.  I am simply a real estate broker that has been very active in the profession and industry for over 40 years now.  I strive to stay on top of industry and market changes so that the agents in our firm, MORE, REALTORS®, and their clients can avoid surprises and be prepared.  Another reason I do this is to share what I have learned with consumers.  I believe that by sharing good, relevant and accurate information to consumers, they will be equipped to make better decisions when it comes to buying or selling real estate, including how to choose an agent to best represent them.

The real estate industry is about to be turned upside down as a result of class action lawsuits against the National Association of Realtors So, what is going to turn the real estate industry upside down?

Yes, I made a rather bold statement in my headline, but I believe it to be an accurate depiction of what is coming to the world of residential real estate, including right here in St Louis.  The source of this disruption is not a single entity, but rather many.  While there is a common theme to the multiple threats, they are coming from different sources.  Over the past few months, I have written about all the issues I’m referring to, so below is a summary of them and links to the original articles:

  • Moerhl v NAR Lawsuit. 3/22/2019 – This suit was filed against The National Association of REALTORS® (NAR), Realogy Holdings Corp, HomeServices of America, Inc, Re/Max Holdings, Inc and Keller Williams Realty, Inc.  The suit alleges that the defendants were “conspiring to require home sellers to pay the broker representing the buyer of their homes, and to pay at an inflated amount, in violation of federal antitrust law.”  At the heart of this claim is the NAR rule that requires sellers to offer compensation to the buyer’s agent in order to be eligible for listing in the MLS.
  • Department of Justice (DOJ) Complaint against NAR. 12/01/2020.  The DOJ filed a complaint against NAR, as well as a settlement agreement, focused on two primary issues; 1. Allowing buyer brokers to misrepresent to buyers that a buyer broker’s services are free; 2.Enabling buyer brokers to filter MLS listings based on the level of buyer broker commissions offered and to exclude homes with lower commissions from consideration by potential home buyers;


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REALTORS® Adopt New MLS Rule Aimed To Eliminate “Off-MLS” Listings

Yesterday, the board of directors for the National Association of REALTORS® (NAR) approved a new policy dubbed the “Clear Cooperation Policy” which goes into effect January 1, 2020, and Multiple Listing Service’s (MLS) have until May 1, 2020, to adopt and implement.

While the vote by the board of directors, 729 in favor of it to 70 opposed, may not reflect it, there is a lot of controversy about this policy among real estate agents and brokers that are members of NAR. The two main changes this new policy bring about are that agents would be mandated to put, for all intents and purposes, 100% of their listings in the MLS system within one business-day of marketing the listing (marketing is defined to include putting a sign in the yard, telling someone about the listing, etc) and “MLS-exempt” listings will no longer be permitted.

Better for the consumer?

Proponents of the new NAR MLS policy say that this will be better for consumers by:

  • Making all available listings show in the MLS;
  • Giving more exposure to sellers of their listings by not permitting “MLS exempt”, “off-MLS”, “Coming Soon” or other marketing methods that may not include putting the listing in the MLS, or at least not initially;
  • Leveling the playing field, making all listings available to all consumers since listings could no longer be marketed through just social media, private networks, etc, but, instead, would be required to be put in the MLS;
  • Eliminating practices that may violate Fair Housing Laws by limiting what audience a particular listing is exposed to;

Opponents of the new NAR MLS policy argue that it is not better for consumers because:

  • It eliminates the opportunity for an experienced listing agent to determine, in cooperation with their seller client, the best means and methods to market their home to obtain maximum exposure and the highest price;
  •  Pre-marketing, such as a coming soon promotion on social media before the listing is ready to go in the MLS in an effort to generate buzz and hype over the listing, would be prohibited.  This is a method of marketing that, in our current low-inventory market, has been extremely effective in getting maximum exposure, and the highest price, for the seller.
  • Agents would not be permitted to quietly “test” the market to see how the listing, and/or it’s price, will be received by the market.  This is often done by marketing the home before entry in the MLS to establish the right price.  Once in the MLS, the days on market start working against the seller, as do price reductions, so coming into the MLS at the right price is essential for the seller.
  • It prevents a seller from using a REALTOR® when they wish to have their property marketed in a private manner and not publicly.  This happens often when the seller is a high-profile individual that for security and/or privacy reasons, does not want photos and details about their home (including that they are selling it) publicly known.  It can also occur in the case of a divorce, a distressed-type sale, etc;

Time will tell whether this proves to be good, or bad, for the industry and the consumer.

Stay tuned.

REALTORS® Association Considers New Rule Requiring All Listings Be In MLS

The MLS Technology and Emerging Issues Advisory Board, of the National Association of REALTORS® (NAR), proposed a rule change that is sparking some controversy among its’ members.  The proposed “Clear Cooperation Policy” requires that all listings be put in the MLS within 24 hours of “marketing a property to the public“.  The policy defines “public marketing” as including, but not limited to, “flyers displayed in windows, yard signs, digital marketing on public-facing websites, brokerage website displays (including IDX and VOW), digital communications marketing (email blasts), multi-brokerage listing sharing networks, and applications available to the general public”.

But, isn’t that how it is now?

Many consumers may having been thinking that this is how it was all along, that new listings were required to go into the MLS but, that is not currently the case.  Presently (and going back to the beginning of the MLS here in St Louis, I believe), agents have been able to determine the best marketing methods for their client, as well as allow their client input as to whether they wanted their listing in the MLS immediately, after a period of time or even not at all.

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Who Pays The Buyers Agent?

I saw an article recently about the results of a survey done of home sellers that found that nearly half of them didn’t realize they pay the buyers’ agent commission when they sell their home.

Sellers pay the buyers’ agent in almost all home sales in St Louis…

While I don’t know for sure, I would guess that the people surveyed were homeowners that planned to sell their homes, rather than sellers that already had their homes listed for sale.  I say this because the standard listing agreement used by St Louis REALTORS® spells out the total commission being charged the seller, as well as the portion of the commission that will be paid to the buyers’ agent which I would think, would cause the seller to realize they are paying commission to the buyers’ agent.

While the seller, when presented with the listing agreement, could opt to not offer to pay commission to the buyer’s agent, the MLS rules require that all listings in the MLS (which is most of the St Louis home sales) include an “offer of compensation” for the buyers’ agent, which will come from the seller.  Therefore, the sellers have to either offer to pay the buyer’s agent or forego having their listing in the MLS, hence why sellers pay the buyers agent in nearly all instances.  It’s probably worth noting at this juncture that this practice has come under attack in a recent class-action lawsuit filed by Christopher Moehrl against The National Association of REALTORS®, Realogy Holdings Corp, HomeServices of America, Inc, Re/Max Holdings, Inc and Keller Williams Realty, Inc.  The suit, which can be accessed using the link below, seeks to ban this type of commission arrangement.

Christopher Moehrl v The National Association of REALTORS®

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