Journalists and others have written many articles about the settlement between the National Association of Realtors (NAR) and plaintiff attorneys regarding commissions.
These articles also discussed how home sellers paid their listing agent's and buyer agent's commissions. That's debatable. Only the home buyer brings money to the closing. One can reasonably argue that sellers baked commissions into the price of homes, and home buyers have paid all the commissions.
In any event, the settlement between the NAR and plaintiff attorneys has changed the real estate industry. There's more transparency around real estate commissions, and that's a good thing.
The agreement between the parties requires several practice changes in the real estate industry but does not set real estate commissions. In fact, the settlement makes it clear that real estate commissions are negotiable and not set by law.
The practice changes went into effect on August 17, 2024.
Written Agreement: Home buyers and buyer agents must sign a written agreement before touring a home in person or virtually. You will not need a written agreement if you speak to an agent about a home or ask them about their services.
Before signing an agreement, you should ensure it accurately reflects the agreed-upon terms between you and your agent and that you understand what services will be provided at what cost.
Buyer Agent Compensation: The buyer agent agreement must include four components concerning compensation.
First, the contract must include a specific and conspicuous disclosure of the amount or rate of compensation your real estate buyer agent will receive.
Second, the compensation must be objective, e.g., $0, a flat fee, a percentage, or an hourly rate. The compensation cannot be open-ended. For example, the compensation cannot be "buyer agent compensation shall be whatever amount the seller is offering to the buyer."
Third, the agreement must include a term prohibiting the buyer agent from receiving compensation for brokerage services from any source that exceeds the agreed-upon amount or rate in the contract with the buyer.
Fourth, the agreement must include a conspicuous statement that real estate agent fees and commissions are entirely negotiable and not set by law.
The settlement also required that offers of compensation to the buyer agent not appear on a Multiple Listing Service (MLS). MLS Property Information Network, Inc., the Boston area MLS, settled a different commission lawsuit and has not agreed to take offers of compensation off its MLS unless the listing agent wants the cooperating commission removed. The MLS for the Cape and Islands and the MLSs in New Hampshire and Rhode Island will not offer buyer agent commissions on their MLS.
Most large national brokerages have joined the NAR settlement and will not offer cooperating commissions on the MLS. That doesn't mean sellers will not offer to pay the buyer agent commission.
An experienced buyer agent can craft an offer in several ways, thus providing home buyers with the funds necessary to pay their buyer agent commission. If the sellers are not willing to pay a buyer agent commission or provide some other acceptable concession, a prospective buyer is not obligated to purchase the home.
Home buyers still have choices. The most important choice is choosing a buyer agent who has your best interests in mind. The NAR settlement does not limit a home buyer's right to choose a competent, experienced, and loyal buyer agent.