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New Rules Dictating How Residential Agents Are Paid Take Effect This Weekend

Here’s How a Trade Group Settlement Is Set To Change the Industry

New rules will change the way real estate agents are compensated. (CoStar)
New rules will change the way real estate agents are compensated. (CoStar)

Big changes are about to take effect that will alter the way residential real estate agents are compensated by homebuyers and sellers.

Beginning Saturday, listing agents no longer can advertise compensation for a buyer’s broker on the multiple listing service, the online platform where agents share their houses for sale. The change is part of an agreement reached in March after home sellers filed class-action lawsuits against the National Association of Realtors trade group, and it marks the beginning of a new era of homebuying and selling tailored toward consumer ease.

The settlement, including multimillion-dollar payments from the NAR, received preliminary approval from a judge in April, and a hearing for final approval is set for Nov. 26.

Under decade-old rules, listing agents could offer and advertise compensation for buyer-brokers on the MLS. It’s a strategy that’s been used by agents to incentivize buyer agents to bring clients to see their properties, and it has resulted in sellers typically paying fees to their agent and the buyer's agent — splitting a 5% or 6% commission, for example.

The settlement upends that norm by putting in place restrictions about how agents can communicate those offers of compensation and adding steps to ensure buyer agents are still compensated.

The NAR argues that "the settlement empowers consumers with choice when it comes to services, compensation, and marketing strategies that meet their needs."

"Commissions have always been negotiable," the group's president, Kevin Sears, said at an industry conference at the beginning of the month. "We're going to continue to have the conversations with buyers and sellers about how we're going to get compensated. We need to educate, especially the seller and consumer."

The MLSs will be responsible for enforcing the new rules, and some brokerage leaders anticipate they could be penalized for failing to abide by them, according to Leo Pareja, CEO of residential brokerage eXp Realty.

Agents who do not follow the new regulations may "be subject to $2,500 fines, $5,000 fines, with immediate deletion of their listings," Pareja said on a call with investors to discuss second-quarter earnings last month. Some MLSs have even "floated the fact that they may be even suspending agents."

Pareja said he expects the first six to 18 months to be a “messy middle” as the industry adjusts to the changes. But other brokerage leaders, such as Compass CEO Robert Reffkin, are confident there will be a minimal negative effect on transactions and committed agents.

"The NAR settlement has not impacted, from anything I've seen, buyer or seller's desires to transact," Reffkin told investors on a call last month while discussing the brokerage's second-quarter earnings. “There are more agents that think this will help their business than hurt their business, and I mean revenue, their money.”

Offers of Compensation

Under the new system, listing agents and sellers can still offer commissions to the buyer’s agent. But rather than putting those offers of compensation on the MLS, listing agents will now have to directly communicate such offers with a buyer's agent.

The offer of compensation for the broker’s listing "could be communicated through common marketing methods such as on the broker’s website, signs, flyers, social media posts, or by communicating directly with the buyer broker," according to the industry group.

Listing agents also must "conspicuously disclose" the offer of compensation in writing, including the exact amount or rate to be offered, to the seller and obtain their consent.

Though the rules change the way offers of compensation can be made, the NAR is still encouraging buyers, sellers and brokers to negotiate.

“Offers of compensation are good for buyers and sellers,” the NAR said, “and help make the path to homeownership accessible for all buyers, especially first-time, low-income, and other underrepresented homebuyers.”

Ultimately, the existence of a compensation offer and its value are determined by the consumers and brokers involved in the deal. The NAR said it does not and will not dictate whether those offers are made or their size.

Buyer Agreements

Brokers representing homebuyers also will have to adjust following the implementation of the new NAR rules.

After Saturday, brokers must have a written and signed buyer agreement before they can take buyers on a home tour, either in person or virtually. If a buyer is just talking to a broker at an open house or asking them about their services, however, an agreement is not necessary. The settlement defines a home as "a residential property consisting of not less than one nor more than four residential dwelling units."

To be clear, buyers are not required to work with an agent under the new rules. They can instead opt to represent themselves. If a seller's agent shows them a house, no agreement is necessary. But as soon as an agent is "working with" a buyer, an agreement must be signed before any tours. The NAR defines "working with" as an agent who is "identifying potential properties, arranging for the buyer to tour a property, performing or facilitating negotiations on behalf of the buyer, presenting offers by the buyer, or other services for the buyer."

The buyer agreements must contain four clear parts. First, it needs to have a specific and obvious disclosure of how much compensation the broker will receive, as well as the explicit amount of that compensation either as a rate or number but not an open-ended figure.

The agreement also must include a term prohibiting the broker from receiving compensation for their services that exceeds the amount laid out in the agreement, even if that compensation comes from elsewhere. For example, if the buyer and broker agree on a 2.5% commission rate, but the listing agent offers a 4% commission rate, the buyer’s broker can only accept the agreed-upon 2.5% rate.

Finally, the agreement must include a statement that broker fees and commissions are fully negotiable and are not set by law.