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With proposed commission changes set to take effect nationwide on Aug. 17, there’s a best-case scenario on how the National Association of Realtors’ settlement plays out on the ground — and then there’s the reality.
That was the view, at least, from a range of panelists that included brokers, lawyers and MLS executives across a series of sessions focused on the “evolution of buyer agency” at Inman Connect Las Vegas Wednesday.
From a Realtor in the audience who acknowledged the continuation of commission sharing among peers in her home state to an unidentified multiple listing service currently directing members to draft buyer agreements specific to each listing in its database, a troubling information gap between regulators and real estate professionals was on display over four back-to-back panel discussions on the coming changes.
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At the center of the confusion were clashing interpretations of the proposed NAR policies themselves.
At NAR’s midyear conference in May, the trade group’s legal team promoted the practice of cooperative compensation, detailed ways that listing brokers could advertise offers of compensation to buyer brokers outside of the MLS, and encouraged buyer agents to contact listing agents prior to showing a property to inquire about offers of compensation. This is in stark contrast to what the U.S. Department of Justice has indicated they want to see happen: no offers of compensation from listing brokers to buyer brokers made anywhere so that the seller and listing agent have no influence on the amount buyers pay their agents.
“I’m wondering, are we doing something wrong?” one flummoxed Realtor asked panelists on Wednesday afternoon, presumably voicing the concerns of many of her peers in the audience.
For the Indiana Realtor who voiced confusion over the changes, at issue were best practices around buyer agreements and protocols for reaching out to listing agents. To peers in the audience and panelists Cassie Walker Johnson of Windermere Real Estate, Kendall Bonner of eXp Realty and Ed Zorn of the CRMLS, she let slip that those calls from buyer agents to listing agents were already happening.
“This is what people have led us to believe we should be doing,” she said. “Calling each agent before you even show a house: ‘We have our buyer broker agreement. What have you negotiated with your seller?'”
The panelists, including moderator James Dwiggins, the CEO of NextHome, all disapproved of the practices described by the attendee.
Johnson, a managing broker with Windermere, raised the specter of agent steering, and advised against calling a listing agent to inquire about compensation before a buyer client has toured a home. Bonner, a team leader at eXp, agreed that on a practical level, calling every listing agent ahead of every showing wasn’t an efficient model for success. She pointed to an unidentified MLS that was advising members to do just that.
“One MLS I know, that will remain nameless, in Florida, they are instructing their agents to get a new agreement for every listing and call each listing agent, find out what they are offering, and write an agreement specifically for that property, for each listing,” Bonner told the ICLV audience on Wednesday.
If panelists were unanimous in their disapproval of the Indiana Realtor’s actions, they were also in lockstep on the merits of what Zorn characterized as a “consumer-centric model.” Instead of propping up the old commission-sharing system, Zorn said, listing agents should concern themselves solely with their own fee. Buyer agents, meanwhile, should negotiate their compensation with buyers before showings. And buyers should, if needed, ask for their agent’s compensation in a purchase offer, which the DOJ has specifically said would be permissible.
“[The model] is really simple,” Dwiggins added. “Seller’s willing to entertain any and all requests, put it in your offer. Buyer’s agent, put whatever you want in the offer, and it becomes a negotiation.”
“Realistically … concessions aren’t even going to need to be a thing long-term, potentially, because it’s just a matter of: My seller will listen to whatever you want to put in the offer, and it’s just a negotiation.”
Zorn agreed. In his earlier session focused on the “How To Get Paid in a Decoupled Commission World,” he told attendees they have a choice: “Are you going to choose the route of staying with the old commission-sharing model? Or are you going to look at the changes that are coming up and look at opportunities to enhance your role in real estate?”
Everyone in the industry will have to choose, regardless of their role, Zorn added.
At a session called “Commission Chronicles: Implications for MLSs,” panel moderator Sam DeBord noted “very different implementations” across the country of the settlement changes and that some agents had decided to get “creative” with continuing to make offers of compensation.
“[There are] some really interesting stories of agents saying, ‘I’m going to put commissions in the watermark of photos’ or ‘The number of commas and periods in the listing description will tell you what the number is,'” DeBord told the ICLV audience, before adding: “Please don’t do that.”
Annie Ives, CEO of Southern California-based The MLS, said her MLS is using compliance software to review agents’ listing inputs, and will be looking for keywords to find violations.
Some agents are using URLs that end in 2.5, to indicate the percentage of the sales price they’re offering as compensation in the MLS, Ives said. “So we’ll be looking for that,” she said, adding that she expects agents to come up with other “creative” ways to get around the new rules.
Nonetheless, Ives’ MLS does not plan to fine subscribers for violations for the first few months after the changes, she added.
“Our model is not to collect money on fines,” Ives said. “Our model is to keep the data accurate. We want to be friendly to the agent.”
