Amid fierce debate, the National Association of Realtors (NAR) will likely move forward with a requirement that real estate agents representing homebuyers publicize their expected sales commission.
The Multiple Listings Issues and Policies Committee recommended at NAR’s annual conference in San Diego Saturday that Multiple Listings Services “must include the listing broker’s offer of compensation for each active listing displayed on its consumer-facing website.”
On another hotly contested subject, the committee passed a measure requiring that a listing agent’s brokerage* name and contact information be included in a home listing.
Committee recommendations become NAR policy following approval by the trade group’s Board of Directors.
The sales commission disclosure motion passed after a show of hands by committee members, and audience murmurs of “wow, pretty close” and “super close.”
The disclosure rule was part of an antitrust consent decree hammered out between NAR and the U.S. Department of Justice last November. But DOJ memorably announced its withdrawal from the agreement in July, leaving the requirement at the discretion of individual MLS’s.
The present DOJ-NAR standoff suffused a heated discussion of whether commission disclosure is a sensical consumer-friendly policy or needless compromise to outside forces.
One committee member argued that since “NAR is going to be considering suing the Justice Department” for its withdrawal, it made the most sense to adopt the consent decree’s measure. Charlie Lees, senior counsel, and director of legal affairs at NAR, then stepped in and said that measures should be considered on their merit “and are not being pushed to appease anybody.”
Before the committee voted, NAR released a press statement Saturday morning, stating its support for “pro-consumer measures” in the scotched consent decree.
Under the NAR buyer-broker agreement, first adopted in 1913, the real estate agent representing the home seller sets a sales commission, and then splits the commission 50-50 with the buyer’s agent.
The DOJ’s antitrust complaint plus consumer class action lawsuits contend the set up lets buyer’s agents steer clients to homes that net the biggest commission rate. Another longstanding complaint is that since the home seller pays the commission, buyer’s agents can deceptively imply they’re working for free.
These arguments carried the day, but not before several objections.
“Our profession is accounting for our compensation when others don’t,” said Dave Noyes, an eXp real estate agent in Hendersonville, North Carolina. “When I go to a car dealer or to buy a boat, they don’t have to say how much they make.”
Other commenters echoed Noyes, noting that “lawyers and CPA’s” do not have to publicize their pay.
“There is a slippery slope of disclosure,” argued one Indianapolis-based Realtor at the meeting, who asked about whether variable rate commissions must also be shared with consumers.
Agents were also somewhat divided over a motion requiring that MLS listings include “the name of the listing firm and listing participant’s identified email or phone in a readily visible color, and reasonably prominent location, and in typeface not smaller than the median typeface used in the display of listing data.”
The rule has been batted around partly in response to Zillow’s Premier Agent. On Zillow’s website – which has 226 million unique visitors a month – consumers get routed not to the listing agent, but an agent who paid Zillow to be the point of contact. Zillow and other MLS aggregators including Redfin do display the listing’s agents name, but not the contact information.
Meanwhile, brokerage websites often omit the listing agent, or brokerages, name entirely. Some brokers present Saturday, including Noyes at eXp, objected to giving rival agents free advertising on their sites.
One Columbus, Ohio-based agent accused NAR of overreach, stating that the trade group – which already represents 1.5 million real estate professionals, consumers, and brokerages – “is now becoming a web designer.”
Still, roughly two-thirds of the committee voted for the measure, which supporters viewed as a critical consumer transparency tool.
The extended MLS committee session coincided with NAR executive and legal action committee meetings that were closed to media.
The enormous annual conference is spread out through the San Diego convention center, adjoining hotels, and Petco Park, home of Major League Baseball’s Padres. The conference concludes Monday.
* CORRECTION Nov. 16: The original text read “listing agent” and not “listing agent’s brokerage.” In fact, what the committee hammered out only requires that the agent’s brokerage has to be prominently displayed on the MLS listing with contact information. A contact specifically for the individual agent is not required. This measure passed the full board on Nov. 15.
