Specialty Topic:
The NAR Settlement

Introduction

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I, Erin Rose, am not a legal professional, and my sharing of this Content does not constitute a legal opinion or advice. While I strive to ensure the accuracy and reliability of the information, the real estate market is subject to frequent changes and interpretations. Therefore, I cannot guarantee the completeness, accuracy, or timeliness of the information provided.

 

On March 15th, NAR settled a lawsuit alleging antitrust violations related to real estate commission practices. This settlement, importantly not an admission of wrongdoing, includes financial compensation and practice changes aimed at enhancing transparency and fairness. For us in Colorado, this underscores a longstanding truth: real estate commissions are and have always been negotiable.

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What Stays the Same, What Changes:

Your trust in the real estate process is paramount. Rest assured, the foundation of how we buy and sell homes in Colorado, grounded in transparency, integrity, and personalized service, remains unaltered. What evolves is our collective push for greater clarity around commission negotiations and the marketing of listings, ensuring every transaction is as transparent as it is fair.

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My Pledge to You:

• Transparency: Clear, honest information from the start.

• Advocacy: Unwavering support, whether you're buying or selling.

• Education: Insights into the market, process, and your rights.

• Negotiation: Dedicated to securing terms that reflect your best interests.

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Your Rights, Reinforced:

• Negotiation Freedom: Your voice in commission discussions is assured.

• Full Disclosure: Expect comprehensive information on properties and transactions.

• Professional Representation: I'm here, prioritizing your interests above all.

• Equitable Treatment: Fairness is not just a principle; it's a practice.

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As we move forward, my commitment to serving you with integrity, professionalism, and personalized attention stands stronger than ever.

Changes in the industry will not compromise the quality of service you've come to expect.

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A Summary of the Settlement

 

March 25th

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Background of the Case: The lawsuit alleges that the National Association of Realtors engaged in activities that violated antitrust laws by conspiring to raise, fix, maintain, or stabilize real estate commissions. The plaintiffs include individual home sellers and real estate professionals who believe they were adversely affected by NAR's practices.

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Settlement Agreement Date: The agreement was made on March 15, 2024, indicating the document outlines the terms agreed upon by both parties to settle the dispute.

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Parties Involved: The agreement is between the NAR and a group of plaintiffs, who filed the lawsuit on behalf of themselves and a class of similarly situated individuals. The plaintiffs believe they were harmed by the alleged antitrust activities.

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Allegations and Denials: The plaintiffs accused the NAR of conspiring to control real estate commissions in a way that violates antitrust laws. The NAR denies these allegations but has agreed to settle to avoid the further expense and inconvenience of ongoing litigation.

Jury Verdict: Prior to the settlement, there was a jury trial for one of the cases, where the jury found in favor of the plaintiffs. The NAR filed motions challenging the verdict, but these were pending at the time of the settlement.

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Settlement Negotiations: The document details extensive settlement negotiations, including mediation with experienced mediators and judges, leading to the settlement agreement.

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Settlement Terms: The NAR agrees to pay a substantial monetary sum ($418 million) to the plaintiffs and the settlement class. Additionally, the NAR agrees to implement several practice changes aimed at addressing the plaintiffs' concerns regarding real estate commissions and competition. These changes include eliminating certain requirements about compensation offers and making other modifications to how real estate transactions are handled.

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Release of Claims: In return for the settlement payment and practice changes, the plaintiffs and the class members agree to release the NAR from further claims related to the lawsuit's allegations.

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Approval and Effectiveness: The settlement is subject to court approval. Once approved and all conditions are met, the agreement becomes effective, and the lawsuit will be dismissed with prejudice, meaning it cannot be filed again on the same grounds.

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Cooperation and Additional Terms: The NAR agrees to cooperate with the plaintiffs in further proceedings related to the lawsuit and any related litigation, including providing testimony and documents as needed.

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Key Points of the NAR Settlement:

FOR SELLERS

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On March 15th, the National Association of Realtors (NAR) settled a lawsuit alleging antitrust violations related to how real estate commissions are structured. This settlement does not imply wrongdoing by NAR but introduces changes to enhance transparency and fairness in real estate transactions.

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• Negotiability of Commissions: A crucial takeaway is that real estate commissions have always been negotiable, and this settlement reinforces that fact. It emphasizes the importance of transparent discussions between clients and agents regarding commission rates.

• Transparency and Fairness: The settlement aims to ensure greater transparency in real estate transactions, making it clearer how commissions are determined and highlighting the fairness of the negotiation process.

• Pricing: The traditional approach to evaluating comparable properties for setting a listing price is undergoing a significant transformation that requires a deeper level of diligence and expertise from your real estate agents.

  To accurately determine the fair market value of your home, agents may now need to engage in more detailed conversations with other professionals who have recently completed sales of comparable properties. This extra step is crucial for understanding the intricacies behind each transaction, especially differentiating between homes whose sale prices included agency fees and those where such fees were negotiated separately. This distinction becomes particularly important as appraisers adjust their evaluation methods to reflect these nuances, which in turn, can influence the loan amounts buyers qualify for and ultimately, the pool of potential buyers for your home.

  Moreover, this shift in how properties are priced and appraised may lead to an increase in negotiations during the in-escrow period. Discrepancies between the listed price and the appraised value, driven by the new approach to considering agency fees in the pricing strategy, may necessitate adjustments to the terms of the sale. These adjustments could involve discussions around price corrections to align with appraisals or determining who covers specific costs, ensuring the transaction remains fair and equitable for all parties involved.

 

What This Means for YOU, the Seller:

• Transparency in Commissions: The settlement reinforces the need for clear communication between you and your listing agent regarding commission structures. It's important to discuss and understand how your agent's commission impacts the overall transaction, ensuring transparency from the outset.

• Listing and Marketing Your Property: With changes to how properties can be sorted in the MLS, (eliminating the ability for an unethical agent to sort by commission structure) there's a greater emphasis on pricing properties accurately and marketing properties based on their true attributes and what distinguishes them from their comparables. This edit aims to ensure that your property is marketed fairly, will appraise for an expected value, and reaches the right audience, enhancing its selling potential.

• Clarifying Commission Negotiations: The settlement highlights that commission rates are negotiable, ensuring you have the flexibility to discuss and agree upon the commission with your listing agent. This aspect remains crucial in aligning your interests with those of your agent, fostering a partnership that seeks to maximize the return on your property. In some locations or price points, it may or may not be in a Seller’s best interest to agree to a cooperative compensation structure or innovative concession at closing if the Buyer negotiates for one.

  • ○  In some negotiations, it may behoove a Seller to agree to a higher sales price and offer a financial concession at closing to the Buyer that they can then use to cover their Buyer Agency fee agreement.

  • ○  In other cases, a Seller might choose only to pay their Listing Agent - and expect a Buyer to address their own agent’s fee independently.

• Countering Misinformation: Despite suggestions to the contrary, the changes brought about by the settlement do not eliminate compensation for buyer's agents. This means you, as a seller, can continue to negotiate how much, if anything, you're willing to contribute towards the buyer's agent commission as part of the sales agreement. This negotiation is key in structuring deals that are fair and beneficial to all parties involved, reflecting the true negotiable nature of real estate transactions in Colorado.

  This period of adjustment in the industry underscores the importance of partnering with a knowledgeable and proactive agent. An agent well-versed in these new complexities will be instrumental in conducting the necessary research and negotiations to accurately price your home, taking into account the full spectrum of recent changes. Their expertise ensures your property is positioned competitively in the market, appealing to the widest range of potential buyers and securing the best possible outcome for your sale.

 

SELLER FAQS

Can I choose not to offer compensation to the buyer's agent?

Yes, the settlement allows for more flexibility in how transactions are structured, including the possibility of not offering compensation to the buyer's agent through the MLS. However, it's important to discuss the potential impacts of this decision with your listing agent, as it could affect the attractiveness of your property to buyers represented by agents.

 

How might these changes impact the selling price of my home?

The emphasis on transparency and negotiation could lead to more discussions around the inclusion or exclusion of buyer's agent fees in the overall financial structure of offers. This could influence the final selling price, depending on the negotiations between buyers, sellers, and their respective agents.

 

Will the settlement changes affect how quickly my home sells?

The changes primarily aim to enhance transparency and fairness in the real estate market. While these adjustments might shift how buyer's agents are compensated, they shouldn't significantly impact the overall pace of sales. Effective marketing, proper pricing, and the appeal of your property continue to be the main factors that determine how quickly your home sells.

 

Do I have to adjust my marketing strategy because of these changes?

It may be beneficial to review your marketing strategy with your listing agent to ensure it aligns with the new emphasis on transparency and the updated MLS listing practices. Highlighting the unique attributes and value of your property will become even more crucial in attracting potential buyers.

 

How should I approach negotiations regarding buyer's agent commissions now?

Open and transparent discussions about commission negotiations are encouraged under the new settlement. It's important to work closely with your listing agent to determine a strategy that best suits your selling goals while remaining attractive to potential buyers and their agents.

 

Can these changes lead to a better deal for me as a seller?

The increased flexibility and transparency in commission negotiations provide an opportunity for sellers to potentially structure more favorable deals. By considering the entirety of the offer, including how commissions are handled, sellers may find advantageous ways to structure sales that meet their financial and timing needs.

 

What if a buyer’s offer includes covering their agent's commission?

Offers from buyers that include covering their own agent's commission can be an aspect of the negotiation process. This could affect the overall financial dynamics of the offer and should be considered alongside other factors such as sale price and closing conditions. Discussing these options with your listing agent can help you understand the implications and make informed decisions.

 

How can I ensure my home is competitive in the market with these new changes?

Focus on ensuring your home is well-presented, priced correctly, and marketed effectively. Understanding and adapting to the changes in how commissions are discussed and negotiated can also help make your property more attractive to a wider range of buyers and their agents.

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Key Points of the NAR Settlement:

FOR BUYERS

​

On March 15th, the National Association of Realtors (NAR) settled a lawsuit alleging antitrust violations related to how real estate commissions are structured. This settlement does not imply wrongdoing by NAR but introduces changes to enhance transparency and fairness in real estate transactions.

​

• Negotiability of Commissions: A crucial takeaway is that real estate commissions have always been negotiable, and this settlement reinforces that fact. It emphasizes the importance of transparent discussions between clients and agents regarding commission rates.

• Transparency and Fairness: The settlement aims to ensure greater transparency in real estate transactions, making it clearer how commissions are determined and highlighting the fairness of the negotiation process.

• Home Values: The method for determining a home’s market value is becoming more nuanced, requiring an increased level of insight and effort from your real estate agents.

  • When identifying comparable properties to inform your offer, agents now face the additional task of discerning the specifics behind each sale. This might involve reaching out to listing agents to ascertain whether the sale price of a home included agency fees or if these were negotiated separately. This distinction is vital, not just for making informed offers, but also because it influences appraisals, which are essential for securing financing. Appraisers are adapting their methods to account for these variances in how sales prices are structured, impacting loan amounts and, by extension, your purchasing power.

  • Given these complexities, you may encounter more negotiations during the in-escrow period than might have been typical in the past. Any discrepancies between the offer price and the appraised value, especially as the industry recalibrates its approach to pricing and MLS reporting, could necessitate discussions around adjusting terms to match the appraised value or even reevaluating who is responsible for covering certain costs.

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What This Means for YOU, the Buyer:

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• Exclusive Right to Buy Contract: Before viewing any homes, you're now required to sign the Colorado Commission-approved Exclusive Right to Buy contract. This previously encouraged but not required step ensures you understand the nature of the agency relationship between you and your agent. It clarifies how the buyer's brokerage gets compensated, highlighting any responsibilities you might have regarding the commission.

• Changes in MLS Listings and Compensation Negotiation: Small but significant edits have been made to how properties are listed on the MLS and how buyer's agents are compensated. Specifically, agents can no longer list a predetermined compensation promise from the seller in the MLS. This means each buyer's offer must include its unique negotiations for agent compensation, eliminating the practice of offering blanket, unilateral compensation structures. These adjustments aim to discourage unethical behaviors by ensuring properties aren’t excluded in searches based on agent compensation.

○ These changes introduce a new dynamic in negotiating agent compensation, which may now vary significantly with each transaction. As a buyer, this could influence your offer strategy since any agent fees not covered by the seller may need to be accounted for in your offer. This adjustment seeks to ensure all properties are considered on their merits rather than the commission offered.

● Dispelling Misconceptions: Contrary to what some media outlets have suggested, buyer agents will still receive compensation for their services. The method and rate of this compensation, as has always been the practice in Colorado, are negotiable. This setup ensures that you, as a buyer, can have transparent discussions with your agent about their services and the associated costs.

This evolving situation underscores the value of having a knowledgeable and proactive agent by your side—an agent prepared to undertake this additional research and advocate for your best interests during negotiations. Their expertise is now more important than ever in ensuring you make well-informed decisions, aligned with the most current industry practices.

 

BUYER FAQS

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Will buyer agents stop getting paid because of this settlement?

No, buyer agents will continue to be compensated. The method and amount remain negotiable between the buyer and their agent.

 

Do I have more paperwork to sign now before seeing a home?

Yes, buyers will sign an exclusive right-to-buy contract that clarifies the nature of the agency relationship and commission responsibilities before property showings.

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Has the role of real estate agents in Colorado changed because of this?

The core role of real estate agents remains the same – to serve your interests, whether you're buying or selling. What has changed is an increased emphasis on transparency and clarity regarding commissions.

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How does the settlement change the way I pay for my buyer's agent?

The settlement emphasizes that the way buyer's agents are compensated can now be more openly discussed and negotiated as part of your buying process. While the buyer's agent fee has always been negotiable, the settlement may lead to more varied approaches in how these fees are structured, potentially including discussions directly between buyers and their agents about compensation.

 

Will the changes in MLS listings affect how I find homes?

The changes to MLS listings aim to ensure properties are evaluated based on their merits rather than the commission offered to buyer's agents. This means you'll continue to have access to a broad range of properties but with an enhanced focus on transparency and fairness in how homes are presented and searched for.

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Can the settlement affect the types of homes I’ll have access to?

No, the settlement does not limit the types of homes you can view or consider. It aims to ensure all properties are presented fairly, regardless of the commission structure. Your access to homes on the market should remain comprehensive, allowing you to explore a wide range of options.

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Will I need to negotiate my agent's commission directly now?

It’s possible. While your agent may discuss their standard commission rates with you upfront, the settlement encourages more open dialogue about compensation. This could mean more direct negotiations between you and your agent regarding their fee,

depending on the specifics of your purchase agreement and any seller contributions to agent commissions.

 

Could this settlement lead to lower costs for me as a buyer?

The settlement’s emphasis on commission negotiability and transparency could potentially lead to more favorable negotiation outcomes for buyers. However, the impact on overall costs will vary by transaction, based on the agreements reached between buyers, sellers, and their respective agents.

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How will my agent help me navigate these changes?

Your agent will play a crucial role in helping you understand and adapt to these changes. They should provide clear information about the buying process, including any new requirements for contracts or negotiations, and assist you in making informed decisions about your real estate transaction.

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What should I do if I feel my interests are not being represented fairly due to commission concerns?

Open communication with your agent is key. If you have concerns about how commission negotiations are handled or how they might affect your interests, discuss them directly with your agent. If necessary, consider seeking advice from another real estate professional or legal advisor to ensure your interests are fully protected.

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Disclaimer and Release of Liability:

The information provided in my communications, including but not limited to emails, documents, videos, and any other form of communication (collectively referred to as "Content"), is based on my personal understanding and interpretation of the National Association of Realtors (NAR) lawsuit settlement and its implications on the real estate market. The Content is provided for informational purposes only and is not intended as legal, financial, or professional advice. By accessing, reading, or using the Content, you acknowledge and agree that I, Erin Rose, along with any of my affiliations or entities, shall not be liable for any direct, indirect, incidental, consequential, or exemplary damages, including but not limited to damages for loss of profits, goodwill, use, data, or other intangible losses resulting from the use of or reliance on any information provided in the Content.

You further agree to release and hold harmless Erin Rose from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney fees and costs, arising out of or in any way connected with your access to, use of, or reliance on the Content.

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By accessing and using the Content, you accept and agree to be bound by the terms and provisions of this disclaimer, release of liability, and copyright notice. If you do not agree with these terms, you are advised not to use or access the Content. March 2024. 

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