NAR Settlement: Get the Facts

LITIGATION UPDATES

Update: June 4, 2024

New Guidance for Written Buyer Agreements: NAR has developed a new guide on written buyer agreements to support members as they prepare for and adapt to the upcoming practice changes following NAR's settlement agreement. Beginning Aug. 17, a buyer representative working with a buyer will be required to enter into a written agreement with the buyer prior to touring a home, including both in-person and live virtual tours. The guide for developing these agreements is available at facts.realtor and a PDF version can be downloaded here.

Window to the Law: Settlement Facts Video: NAR has created a question and answer video series about the settlement, new practice changes and MLS rules.

Update: May 21, 2024
The Department of Veterans Affairs plans to temporarily lift its ban on buyers directly paying for professional real estate representation until the agency deems it necessary to engage in a formal rulemaking process, a VA official said Tuesday at a Mortgage Bankers Association conference in New York. Although not an official announcement, the comments from VA Deputy Director of Policy Michelle Corridon were met with relief from the real estate industry, as the VA’s home loan guaranty is the only loan program with this explicit prohibition.

Update: May 20, 2024
NAR Seeks Additional Court Review in DOJ Dispute. The National Association of Realtors® on Monday petitioned the U.S. Court of Appeals for the District of Columbia Circuit for a rehearing, challenging its ruling that would allow the Department of Justice to reopen a previously closed investigation into NAR’s policies. In the filing, which forcefully advocates for the interests of members, NAR outlines the flaws in the reasoning for the appeals court’s majority decision in favor of the DOJ. This dispute focuses only on the department’s ability to unilaterally withdraw from its settlement agreement with NAR. It does not address any of the department’s claims about NAR policies or antitrust topics. Note: This story is unrelated to the private class action litigation in which NAR is a defendant and NAR’s pending settlement agreement in that litigation. Read More

Update: May 9, 2024
What Does NAR’s Settlement Mean for Your Business? Listen in on a roundtable discussion with four real estate pros who discuss what’s next for buyers, sellers and NAR members. Listen Here

Update: May 9, 2024
Refocus on Using Your Voice for Your Clients, Industry. Listen as members explain why NAR’s advocacy machine, which has never once slowed down, is reason number one to be a Realtor®. Listen Here

Update: May 3, 2024

In a letter to members, NAR Chief Legal Officer Katie Johnson announced practice changes required under the NAR Settlement Agreement in the seller commission cases will take effect on August 17, not July as originally stated, giving all parties involved a three-month window to adapt.

Update: April 23, 2024 

Court Grants Preliminary Approval of NAR Settlement: On Tuesday, the U.S. District Court for the Western District of Missouri granted preliminary approval of the National Association of Realtors®’ proposed settlement agreement that would end litigation of claims brought on behalf of home sellers related to broker commissions. Plaintiffs filed a motion last Friday for preliminary approval of the settlement agreement in the Western District of Missouri. The court acted quickly to preliminarily approve the motion, calling the agreement “fair, reasonable and adequate.” The plaintiffs’ filing initiated the 60-day period during which all Realtor®-owned MLSs, brokerages with total residential transaction volume above $2 billion in 2022 and non-Realtor® MLSs that want to be covered by the settlement must act. The deadline to submit the opt-in agreements is June 18. Read More

Update: April 23, 2024 

NAR’s culture transformation commissioners and new leadership are helping to usher in big changes for the nation’s largest real estate organization. When the National Association of Realtors® named its Culture Transformation Commission—a group of more than 70 members; state and local association staff; and NAR staff selected through a collaborative process—the aim was to identify and break down impediments to being an inclusive, welcoming and respectful organization for all. Read More

Update: April 17, 2024
SCOTUS sides with landowners in takings clause case. For the second time in two weeks, the Supreme Court upholds private property rights after NAR steps in. The National Association of Realtors® joined the Texas Realtors® and American Property Owners Alliance in filing an amicus brief in support of the landowners last year, saying takings like these can artificially increase real estate costs, restrict fundamental property rights and hinder potential development opportunities. Read More

Update: April 15, 2024
Just a short while ago, both Fannie Mae and Freddie Mac published explicit confirmations that buyers whose agent is compensated by the seller will continue to have access to financing through those institutions. Furthermore, so long as it remains “customary” for the seller to pay commissions, those will not be added to the interest party contributions (IPC) and subject to the caps on IPCs. Interpretation of this rule under the proposed settlement was of great concern, and NAR wrote to Fannie Mae, Freddie Mac and the FHA seeking confirmation of our interpretation. In a letter to NAR, FHA confirmed that this interpretation holds true. NAR will continue to press for access to affordable financing options and will keep you updated on any changes.

Update: April 12, 2024
Today, the Judicial Panel on Multidistrict Litigation (JPML) ruled that centralization of the class action lawsuits is not necessary at this time because the settlement agreement NAR reached with plaintiffs on March 15 would resolve some, if not many, of the claims in the pending cases. NAR is pleased with the ruling. It reflects that NAR’s settlement, which, if approved by the court, would end litigation nationwide for NAR and other released parties in the cases brought by home sellers. To be clear, this JPML ruling does not affect the approval process for the settlement agreement. 

Update: April 11, 2024
Make sure to read the special digital supplement of Realtor® Magazine with 16 pages of important content that will dispel misinformation about the proposed settlement. It also includes valuable resources that help separate litigation facts from fiction, debunk myths and help explain the importance of a written buyer agreement. Click here to read.

Update: April 9, 2024
NAR President Kevin Sears sat down with Real Estate Insiders Unfiltered to discuss the future of NAR and the recently announcement settlement agreement. You can listen to or watch the podcast episode here.

Update: April 8, 2024
Last week NAR President Kevin Sears checked in from Wyoming, where he met with Realtors® from six western states at the Region 11 Conference. Kevin’s attended many member town halls across the country to answer questions about the settlement; keep up with the latest at facts.realtor. We also encourage you to watch Kevin’s video here to learn about a valuable member service we’re offering at no additional cost, as well as how you can engage with NAR committees. Stay tuned for Kevin’s next update.

Update: April 3, 2024
Fortune Magazine published an op-ed by NAR Realtor® Party Community Engagement Liaison Tim Hur. You can read the article here. Throughout the article, Tim debunks widespread misreporting currently flooding the marketplace about our settlement. Importantly, Tim clarifies the fact that the NAR does not set commissions, and that nothing in the proposed settlement would change that. 

Update: March 27, 2024
NAR submitted a letter to the Department of Veterans Affairs (VA), urging it to revise its policies pertaining to fees veterans cannot pay when using their VA home loan benefit. Under VA policies, veterans using the home loan benefit are prohibited from compensating their professional representative directly. This puts VA buyers at a disadvantage in situations where offers of compensation are not offered from a seller, potentially forcing them to forego professional representation, choose a different loan product, or exit the market entirely. Read More

Update: March 27, 2024
NAR along with the Mortgage Bankers Association (MBA) sent a letter to the Federal Housing Finance Agency, Federal Housing Authority, Fannie Mae and Freddie Mac seeking confirmation that homebuyers will continue to have access to mortgage credit after the proposed settlement in the Burnett et al and Moehrl et al cases is complete. Specifically, NAR and MBA asked the regulators and GSEs to confirm that the custom of excluding seller’s payment of commissions for buyer’s agents will continue to be excluded from the limits on Interested Party Contributions. This confirmation is a critical piece of the post-settlement puzzle. Read More

Update: March 24, 2024
Watch a settlement briefing from NAR President Kevin Sears and Chief Legal Officer Katie Johnson. Watch Here

Update: March 21, 2024
NAR President Kevin Sears discusses key settlement considerations and ongoing advocacy efforts on the road. Watch Here

Update: March 19, 2024
Correcting the Record - NAR Does Not Set Commissions. Following recent inaccuracies in media coverage, including the false representation or suggestion that the National Association of Realtors® (NAR) requires a standard 6% commission, NAR has issued the following statement. Read Here

Update: March 15, 2024
Litigation Update from NAR President Kevin Sears and CLO Katie Johnson. Hear from President Kevin Sears and Chief Legal Officer Katie Johnson on how the National Association of Realtors’® resolution provides a path forward for the industry and helps ensure consumer choice. Watch Here

Update: March 15, 2024
NAR reaches agreement to resolve home seller class action lawsuits. This proposed settlement achieves both of those goals. Here are the key terms:

• Release of liability. The agreement would release NAR, over one million NAR members, all state/territorial and local Realtor® associations, all association-owned MLSs, and all brokerages with an NAR member as principal that had a residential transaction volume in 2022 of $2 billion or below from liability for the types of claims brought in these cases on behalf of home sellers related to broker commissions. 

  • NAR fought to include all members in the release and was able to ensure more than one million members are included. Despite NAR’s efforts, agents affiliated with HomeServices of America and its related companies—the last corporate defendant still litigating the Sitzer-Burnett case—are not released under the settlement, nor are employees of the remaining corporate defendants named in the cases covered by this settlement.

• Compensation offers moved off the MLS. NAR has agreed to put in place a new rule prohibiting offers of compensation on the MLS. Offers of compensation could continue to be an option consumers can pursue off-MLS through negotiation and consultation with real estate professionals. And sellers can offer buyer concessions on an MLS (for example—concessions for buyer closing costs). This change will go into effect in mid-July 2024.

• Written agreements for MLS participants acting for buyers. While NAR has been advocating for the use of written agreements for years, in this settlement we have agreed to require MLS participants working with buyers to enter into written representation agreements with their buyers. This change will go into effect in mid-July 2024.

• Settlement payment. NAR would pay $418 million over approximately four years. This is a substantial sum, and it will be incumbent on NAR to use our remaining resources in the most effective way possible to continue delivering on our core mission. NAR’s membership dues for 2024 will not change because of this payment.

• NAR continues to deny any wrongdoing. NAR has long maintained — and we continue to believe — that cooperative compensation and NAR’s current policies are good things that benefit buyers and sellers. They promote access to property ownership, particularly for lower- and middle-income buyers who can have a difficult enough time saving for a down payment. With this settlement, NAR is confident it and its members can still achieve all those goals. 

Read more here. 

Update: February 20, 2024
Message from CAR President/CEO, Tyrone Adams: I understand that [DMAR] members may have questions about a notice of a proposed settlement in certain antitrust commission cases that has been sent nationwide this month. While NAR is not a party to the settlement agreements mentioned in the notice, we wanted to provide some factual information about what the notice means.  

• On February 1, 2024, a notice was sent to consumers related to settlement agreements reached between RE/MAX, Keller Williams, or Anywhere and the class action plaintiffs in the Burnett, Moehrl, and Nosalek cases. NAR is not involved in the proposed settlements.
• The notice gives members of the settlement class information about how to, e.g., make a claim or opt-out of the settlements if, for example, they want to bring their own lawsuits against one or more of the defendants.
• The proposed settlements between these parties are scheduled to be considered for final approval by the US District Court for the Western District of Missouri on May 9, 2024. 
• If someone asks for more details about the RE/MAX, Keller Williams, or Anywhere settlements or whether they should make a claim or opt out of the settlements, you could suggest that they consult an attorney. You can also refer them to the website listed on the notice for further information.

Update: February 16, 2024
Message from Interim CEO Nykia Wright: This is a challenging moment for the real estate industry and for NAR. External commentary has seized on those challenges and purported to tell our story for us. The real story is this: NAR recognizes the challenges of the moment, and we are focused on moving our association and our industry forward. Read More

Update: January 31, 2024
NAR’s Interim CEO Nykia Wright sets the record straight in a new video that addresses false claims about commissions in real estate. Learn how NAR makes efficient, transparent and accessible marketplaces possible, serving consumers and advancing homeownership. Watch Here

Update: January 23, 2024

From Katie Johnson, NAR's Chief Legal Officer and Chief Member Experience Officer | Member Experience, Engagement and Legal Affairs: As you may know, last month plaintiffs in some of the cooperative commission lawsuits filed a motion with the Judicial Panel on Multidistrict Litigation (JPML) asking the panel to centralize and transfer various cases to the federal court in the Western District of Missouri, which is where the Burnett case was tried. Centralizing cases with overlapping factual issues into a single multidistrict litigation (MDL) can create a more efficient legal process that avoids inconsistent rulings and conserves the courts' and parties' resources. Today, NAR filed our response to that motion. As we state in our filing, NAR supports centralizing 19 currently pending commission lawsuits, but disagrees with plaintiffs' arguments that it would be most efficient to transfer the cases to the Western District of Missouri. Instead, NAR believes the best venue to hear the pending lawsuits is the federal court in the Northern District of Illinois. Read More

Update: January 19, 2024

A message from NAR President Kevin Sears about recent association developments. Watch Here

Update: January 12, 2024

Sharon Millett and Vince Malta have been appointed as members of the National Association of Realtors®’ Leadership Team effective immediately and following a unanimous vote by the Leadership Team yesterday. Sharon and Vince are well-positioned to serve on our Leadership Team during this critical time for our organization given their significant NAR leadership experience, continuous engagement in our governance and advocacy efforts, and impressive careers as real estate professionals. We look forward to working with them as we continue to lead our industry forward and ensure transparent and competitive marketplaces for American home buyers and sellers. Read More

Update: January 8, 2024
NAR President Tracy Kasper resigns. President-elect Kevin Sears steps into the role effective immediately. Read Here

Update: December 17, 2023
NAR President Tracy Kasper published an op-ed in USA Today called Buying a house? Don't go it alone. A real estate agent can make all the difference. Read Here

Update: December 5, 2023
Suzanne Bouhia, former Ernst & Young (EY) Chief Communications Officer for the Americas, has been appointed Chief Marketing and Communications Officer of the National Association of Realtors® (NAR) effective December 11. She will be leading the Marketing and Communications Group to set the vision, strategy and long-term management approach for communications, branding and marketing at the association. In this role, Bouhia joins NAR's Senior Vice President team responsible for supporting the association's CEO and executing on strategic priorities to advance NAR's mission. Read More

Update: November 7, 2023

As NAR welcomes Interim CEO Nykia Wright, Tracy Kasper discusses the verdict in the Burnett et al v. NAR et al case and provides high-level guidance to help Realtors® understand and communicate about the verdict. Watch Video Here

Update: October 31, 2023

After an 11-day trial in the case of Burnett v. NAR et al, the eight-person jury in a Kansas City, Mo., federal courtroom came back Tuesday and found NAR and other corporate defendants liable in the case. NAR had presented in court that its rules prioritize consumers, support market-driven pricing and promote business competition. This matter is not close to being final as NAR will appeal the jury’s verdict. It will likely be several years before this case is finally resolved.  NAR stands by the fact that its guidance for local MLS broker marketplaces ensures consumers get comprehensive, equitable, transparent and reliable home information and that brokerages of any size, service or pricing model get a fair shot at competing. NAR will continue to focus on our mission to advocate for homeownership and always put consumer interests first.  

Update: October 30, 2023

On Monday, the final defense witness took the stand, which was followed by instructions by the judge to the jury and closing remarks by lawyers for the plaintiffs and all co-defendants. During NAR’s closing remarks, outside counsel Ethan Glass presented to the jury how there was no evidence to support the plaintiff’s allegations against NAR.

1. NAR demonstrated there is no evidence or expert testimony to support allegations of antitrust violations claimed by plaintiffs. It makes no sense that hundreds of thousands of people got together to coordinate a very public rule and public rule-making process involving hundreds of thousands of public documents.
2. NAR affirmatively proved purpose and effect of the cooperative compensation rule, which enables brokers to know how much they will be paid before starting work. NAR’s model rule has expressly stood for the proposition that buyer brokers, like everyone else, have the right to know how much they will be paid prior to commencing work. Commission rates are market-driven and have fluctuated over time. Agent compensation is set between brokers and their clients and has always been negotiable at any point in the transaction. And those costs are spelled out to buyers and sellers.
3. NAR reaffirmed that a trade organization can lawfully create rules. NAR illustrated how trade associations are legal and serve important purposes, including for consumers. It is common practice for trade associations to meet or talk amongst the industry and adopt a rule or industry standard. And membership is voluntary.
4. NAR showed that there is no harm to sellers. NAR doesn’t tell people what to charge or to receive a commission. NAR rules are very intentionally pro-consumer and pro-business competitive, and buyer brokers exist because consumer protection agencies thought they were important.

Jury deliberation begins Tuesday. 

Update: October 27, 2023

On Friday, four more witnesses took the stand for the corporate defendants. The trial will continue Monday morning with one more witness expected, followed by closing statements, jury instructions and then jury deliberation, which could begin as soon as Monday afternoon. A verdict could then be delivered at any point and likely sometime next week.

Update: October 26, 2023

Thursday, four additional witnesses took the stand for the corporate defendants.

Video testimony of Scott Trupiano, a withdrawn plaintiff, detailed his experiences both purchasing and selling homes. Trupiano recounted how he was very satisfied with his real estate agent and worked with her as both a seller agent and buyer agent for three separate transactions. Trupiano agreed to the terms of the listing agreement each time and rated his agent a nine out of 10 on each transaction, sharing how he valued the services she provided.

David Stevens, who previously served as Assistant Secretary of Housing and Federal Housing Commissioner for the U.S. Department of Housing and Urban Development (HUD) and oversaw FHA programs for Single and Multi-Family Housing, discussed why the current compensation model is not only helpful for both home sellers and buyers but particularly first-time buyers:

• Most first-time home buyers are cash-constrained and requiring them to also pay for the buyer agent commission could force them to put down less for a down payment or forego professional services needed for one of the biggest purchases they’ll make in their lifetime.
• Home sellers benefit from the offer of compensation because it ensures the seller will receive the most qualified buyers and the best offer. 
• Buyer brokers’ expertise is needed now more than ever because it is hard to buy a home.
• The compensation the listing broker pays to the buyer broker is always negotiable.

Dr. Lawrence Wu, President of National Economic Research Associates, also testified that:

• There is no evidence of conspiracy because offers of compensation are decisions independently made between a home seller and a listing broker, and are always negotiable.
• The offer of compensation benefits sellers by ensuring they get more buyers to see their house and more competitive bids, and benefits buyers by ensuring they have more choices and access to professional representation. 
• No one gets paid until a property sale closes, which fosters competition and creates a marketplace where brokers are further motivated to always serve their clients’ best interests.
• Even if the cooperative compensation rule was not in place, evidence shows that the practice of cooperative compensation would still exist because it is good for sellers and buyers.

Keller Williams plans to present their witnesses on Friday, with closing arguments by all parties likely to begin on Monday, followed by jury deliberations.

Update: October 25, 2023

On Wednesday, four witnesses took the stand for the corporate defendants who will continue presenting their case throughout the week. Defense expert witnesses are anticipated to take the stand tomorrow and closing arguments could be as early as Monday. HomeServices of America, Inc. filed a motion for mistrial, which the court denied.

Update: October 24, 2023

Tuesday the defense continued their case as NAR CEO Bob Goldberg completed his testimony and NAR Director of Engagement Rodney Gansho took the stand. Gansho explained how Multiple Listing Services (MLSs) and associated rules work and noted:

• Local MLS broker marketplaces promote transparency, equity, and efficiency for the benefit of consumers and enable real estate professionals to better serve their clients.
• Local MLS broker marketplaces determine their rules locally and decide whether to adopt provisions of NAR’s MLS Handbook, including those identified as “mandatory.”
  • Should a local MLS choose not to adopt mandatory provisions, it would need to purchase its own error and omissions insurance.
  • Local MLSs are responsible for the enforcement of the rules they adopt.
  • Nothing in NAR’s MLS handbook requires sellers to do anything.
• “Blanket unilateral offers of compensation” means the listing broker makes a one-way, initial offer (unilateral) that is the same (blanket) for any MLS participant who brings a ready, willing buyer. That offer can then be negotiated – and often is – at any point in the transaction.
• The listing broker has fiduciary duties to the seller and the buyer broker has fiduciary duties to the buyer, and no one makes any money unless there is a successful transaction and the property sells.
  • Sellers determine which real estate professional to work with, and whether to even work with one.
  • At the outset of the transaction, sellers determine how much they will pay for a real estate professional’s services, which is then memorialized in the listing agreement between the seller and the real estate professional.
  • The NAR Code of Ethics requires Realtors® to disclose to sellers any amount of compensation that will be offered to a buyer broker who brings a ready, willing buyer to successfully purchase the seller’s property.
  • The NAR Code of Ethics requires buyer brokers to inform buyers of all properties that meet their criteria, regardless of the offer of compensation being made to the buyer broker; and buyer brokers have options when they are not getting the cost of their services covered by the seller broker, including that the buyer can pay directly for the buyer broker’s services or the buyer can ask the seller to cover that cost.
• The NAR cooperative compensation rule benefits sellers by exposing their homes to every brokerage and real estate agent with ready, willing buyers to successfully purchase the buyer’s home. Buyers benefit because there is one centralized marketplace to go to, and they don’t have to pay out-of-pocket expenses, which means more buyers can afford a home and have more money to purchase a home, and sellers have a larger pool of buyers to purchase their home.

Update: October 23, 2023

Today, plaintiffs rested their case after presenting testimony from four more witnesses. In the afternoon, the defense began its case and presented NAR CEO Bob Goldberg. Goldberg shared the many functions and benefits of a trade association, and specifically how NAR works to protect, preserve, and advance homeownership, as well as to increase professionalism in the industry, and all for the benefit of consumers. NAR also presented Sharon Millett, NAR Past President and Chairperson of the 1991-92 NAR Presidential Advisory Group on Agency (PAG).

Millett explained:

1. The PAG found that buyers needed and wanted a loyal advocate to represent them in the transaction, as the market shifted from subagency to buyer agency. 
2. The PAG’s charge and goal was to accommodate and encourage different forms of representation, placing a consumer’s freedom of choice as central to the PAG’s work.
3. The PAG didn’t focus on compensation, as the practice of offering cooperative compensation already existed in the marketplace.
4. The PAG’s work allowed the marketplace to evolve and to provide consumers with greater choice, with today’s norm giving buyers the ability to work with a loyal buyer agent who puts their needs above anyone else’s.
5. Buyer brokers expend a significant amount of time and effort on behalf of their buyer clients and advise buyers on all aspects of the transaction, including helping buyers sort through the overwhelming amount of information available to consumers on the internet.
6. Listing brokers would still offer compensation to buyer brokers even if the NAR cooperative compensation rule did not exist because:
   1. It is the best way to expose a seller’s property to the largest number of buyers. 
   2. If the seller’s broker isn’t offering enough to cover a buyer broker’s fees, buyers may pass over a property because cash-strapped buyers can’t afford to cover the buyer broker’s fees on top of the significant amount of money it takes to purchase a home.
   3. Sellers get better pricing offers which allows sellers to sell their home faster, as two brokers work cooperatively to achieve a successful transaction for both the seller and the buyer’s benefit.

Update: October 21, 2023

On Friday, plaintiffs had three witnesses including one who talked about how commissions work abroad. The following are three perspectives on compensation and the consumer experience in other countries. 

1. Local Broker Marketplaces: Insights From a Romanian Realtor® (link is external) (Inman, September 2023) 
2. Opinion: Is Israel Adopting the U.S. Real Estate Model? (link is external) (Real Trends, June 2023) 
3. Why the U.S. MLS System Is the Envy of Other Countries (link is external)  (Housing Wire, July 2021)   

Update: October 20, 2023

On Thursday, another seller member of the class and an economics professor testified as plaintiffs' witnesses. Some of the discussion centered on the compensation model in local MLS broker marketplaces. For context: 

• Agent compensation is set between brokers and their clients and always has been negotiable at any point in the transaction. Those costs are spelled out to buyers and sellers, and NAR doesn’t tell people what to charge. The NAR Code of Ethics also requires members to advise clients about cooperation and the amounts of compensation to be offered.
• Despite what may be months or even years of work, agents only get paid when a home is sold, and according to Real Trends(link is external), commission rates have fluctuated over time and are well below where they were in the ‘90s. 
• The seller decides what fee they are willing to pay for their broker’s services and how much that listing broker should offer a broker who brings a buyer to close the transaction. 
• Because of this practice, sellers have access to the largest possible pool of buyers, and buyers get access to the greatest number of homes for sale in one place all in transparent and efficient virtual marketplaces. 
• Buyers also have the greatest chance to receive professional representation to guide them through the financial, legal and community complexities of buying a home in what is for many the single most complex and significant purchase they will make in their lifetime.  
• The future of that buyer representation is at risk in this case. 

Update: October 18, 2023

On Wednesday, three members of the class took the stand to testify as to their experience as home sellers, along with other Plaintiff’s witnesses. In addition, the plaintiffs’ attorneys presented recorded video deposition testimony from three NAR witnesses who discussed NAR MLS guidance, including The Clear Cooperation Policy.

• The Clear Cooperation Policy (CCP) ensures brokers and agents serve the best interests of consumers and promote equal opportunity for all. The CCP advances equal access and opportunity in housing by ensuring listings are widely available and accessible to all consumers and requires MLS participants to submit their listings within one business day of marketing the property to the public. Without the protections from the CCP, consumers would be disadvantaged because agents could refuse to give agents or customers access to those listings.
• The CCP is especially important in competitive markets where properties sell extremely fast, and to help inoculate against circumstances in which properties are publicly marketed to limited groups of people.
• CCP was enacted in response to concerns about confusion in the marketplace about the availability of properties – often to the disadvantage of both home buyers and sellers. Brokers and local MLS broker marketplaces across the country asked NAR to consider a policy reinforcing the pro-consumer, pro-competitive benefits of listing a property in local MLS broker marketplaces.

Update: October 17, 2023

Tuesday plaintiffs, co-defendants and NAR outside counsel, Ethan Glass, presented opening remarks in the case of Burnett et al v. National Association of Realtors® et al. Glass noted that:  

• NAR rules are made as part of a very public rule-making process and are persistently and publicly shared and available.    
• The compensation rule ensures the buyer broker knows what they will be paid before they commence work and that buyers can afford representation.   
• Plaintiffs envision a world where there is no buyers’ agent and buyers would have to go it alone in what is the single most complex and significant purchase most people will make in their lifetime.  
• If buyers had to pay out of pocket for representation, that would reduce the number of buyers and the money buyers have to purchase homes from sellers.   
• NAR does not seek, track, receive or set commissions for buyers’ or sellers’ agents. Agent compensation is set between brokers and their clients and has always been negotiable at any point in the transaction, as set forth in NAR’s publicly available guidance for members. And those costs are spelled out to buyers and sellers.  
• Every plaintiff in this case knew the commission they were paying to their agent and agreed to it in writing. 
• Article 1 of the NAR Code of Ethics requires a Realtor® to “protect and promote the interests of the client.” NAR also has rules that prohibit antitrust behavior.  

Update: October 15, 2023

Jury selection is scheduled for Monday, Oct. 16, and opening statements are scheduled for Tuesday, Oct. 17.

NAR Position: In response to the marketplace, NAR has developed guidance for local MLS broker marketplaces that supports consumers getting comprehensive, equitable, transparent and reliable home information while brokerages of any size, service or pricing model get a fair shot at competing. The result is an efficient model for brokers to serve sellers and buyers and to enable market-driven pricing and buyer representation for consumers. Realtors® adhere to a strict Code of Ethics and bring incredible expertise to guide consumers through the financial, legal and community complexities of buying or selling a home.

BROKER RESOURCES

•  Broker-to-Broker Agreements: Broker-to-Broker agreements help to memorialize compensation agreements between brokers, in accordance with the seller’s authorization to the listing broker and the buyer’s agreement with the buyer broker.
• Compensation Disclosure Statement: Template language for brokers to use with active clients who have listing or selling agreements entered into prior to August 17.
• Guide to Upcoming Practice Changes for Real Estate Professionals

HERE'S WHAT THE NAR SETTLEMENT MEANS FOR HOMEBUYERS

• You will sign a written agreement with your agent before touring a home.
• Before signing this agreement, you should ensure it reflects the terms you have negotiated with your agent and that you understand exactly what services and value will be provided, and for how much.
• The buyer agreement must include four components concerning compensation.
  • A specific and conspicuous disclosure of the amount or rate of compensation the real estate agent will receive or how this amount will be determined.
  • Compensation that is objective (e.g., $0, X flat fee, X percent, X hourly rate)—and not open-ended (e.g., cannot be “buyer broker compensation shall be whatever the amount the seller is offering to the buyer”).
  • A term that prohibits the agent from receiving compensation for brokerage services from any source that exceeds the amount or rate agreed to in the agreement with the buyer; and,
  • A conspicuous statement that broker fees and commissions are fully negotiable and not set by law.
• Written agreements apply to both in-person and live virtual home tours.
• You do not need a written agreement if you are just speaking to an agent at an open house or asking them about their services.
• The seller may agree to offer compensation to your agent. This practice is permitted but the offer cannot be shared on a Multiple Listing Service (MLS)— MLSs are local marketplaces used by both buyer brokers and listing brokers to share information about properties for sale.
• You can still accept concessions from the seller, such as offers to pay your closing costs.

HERE'S WHAT THE NAR SETTLEMENT MEANS FOR HOME SELLERS

• You still have the choice of offering compensation to buyer brokers. You may consider doing this as a way of marketing your home or making your listing more attractive to buyers.
• Your agent must conspicuously disclose to you and obtain your approval for any payment or offer of payment that a listing broker will make to another broker acting for buyers.
• This disclosure must be made to you in writing in advance of any payment or agreement to pay another broker acting for buyers, and must specify the amount or rate of such payment.
• If you choose to approve an offer of compensation, there are changes to how this can happen.
• You as the seller can still make an offer compensation, but your agent cannot include it on a Multiple Listing Service (MLS)—MLSs are local marketplaces used by both buyer brokers and listing brokers to share information about properties for sale.
• Your agent can advertise your listing via off-MLS platforms such as social media, flyers and websites.
• You as the seller can still offer buyer concessions on an MLS (for example, concessions for buyer closing costs).