The ECBOR Executive Committee continues to discuss the NAR lawsuit settlement and how they can help ECBOR members navigate the changes coming to the industry.

Once NAR files the motion for the court to approve the settlement terms; action will be taken.

For now; communicating is the key.

Commerical Practioners & the NAR Lawsuit

NAR has provided information in response to questions raised about the settlement's impact on commercial transaction. 

Just to clarify; the proposed settlement agreement—like the Sitzer-Burnett lawsuit and the copycat lawsuits—is focused on residential real estate transactions meaning most commercial transactions will not be affected.

Below are some clarifying points that commercial practitioners can use. Also provided are the top Q & A on this subject. 

For additional information about NAR’s commercial program; please visit commercial.realtor.

For settlement agreement information, please visit facts.realtor. 

Talking Points 

• The proposed settlement agreement—like the Sitzer-Burnett lawsuit and the copycat lawsuits—is focused on residential real estate transactions. That means most commercial transactions will not be affected.
• In many markets, commercial listings appear in commercial information exchanges (CIEs) and not multiple listing services (MLSs), and do not include an offer of compensation. 
• The settlement prohibits offers of compensation on an MLS and requires MLS participants working with buyers to enter into written agreements with their buyers. These practice changes will go into effect around late July. 
• For properties listed on an MLS, offers of compensation continue to be an option consumers can pursue off-MLS through negotiation and consultation with real estate professionals—as is the case for most commercial transactions. 
• In addition, sellers can offer buyer concessions on an MLS (for example—concessions for buyer closing costs, tenant improvement allowances, etc.) provided that such concessions are not conditioned on the use of or payment to a buyer broker. 
• For all transactions, the types of compensation available for buyer/tenant brokers continues to take multiple forms, depending on broker-consumer negotiations. 
• For all real estate professionals, compensation would continue to be negotiable and should always be negotiated between agents and the consumers they serve.

Q & A

1.    Are REALTORS® who deal in commercial real estate covered under the terms of the agreement? 

·   The settlement does not distinguish between REALTORS® who deal in commercial real estate from those who work in residential real estate.

·    If you are an NAR member, you are covered by the settlement unless:

o   You are an employee of: At World Properties, LLC; Compass, Inc.; Douglas Elliman, Inc.; Douglas Elliman Realty, LLC; eXp Realty, LLC; eXp World Holdings, Inc.; Hanna Holdings, Inc.; HomeSmart International, LLC; Howard Hanna Real Estate Services; Keller Williams Realty, Inc.; Real Broker, LLC; The Real Brokerage, Inc.; Realogy Holdings Corp.; Realty ONE Group, Inc.; Redfin Corporation; RE/MAX, LLC; United Real Estate; or Weichert, Realtors® OR

o   You are an independent contractor or employee associated with HomeServices of America or one of its affiliates.

2.    What do these practice changes mean for commercial practitioners?  

• The proposed settlement agreement—like the Sitzer-Burnett lawsuit and the copycat lawsuits—is focused on residential real estate transactions.

That means most commercial transactions will not be affected.

• In many markets, commercial listings appear in commercial information exchanges (CIEs) and not MLSs, and do not include an offer of compensation. 
• The settlement prohibits offers of compensation on the MLS and requires MLS participants working with buyers to enter into written agreements with their buyers. These practice changes will go into effect around late July. 

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RECENT COURT RULING REGARDING DOJ

Following is an email from NAR legal counsel with an update on the recent Court of Appeals decision regarding the DOJ and NAR settlement. This is different from the NAR Class Action lawsuit settlement.

If you remember, some years ago during the Trump administration; the DOJ opened investigations into NAR’s business practices. The DOJ and NAR reached an agreement but when the Biden Administration took office, the DOJ didn’t want to honor the original agreement. NAR filed in court to compel the DOJ to honor the terms of their agreement. That court ruled the DOJ had to honor the agreement. The DOJ appealed that decision and the US court of appeals, in a 2 to 1 decision, ruled in favor the DOJ. See below: email from NAR Legal Counsel

From Katie Johnson: NAR Legal Counsel:

This is an update on the decision recently issued by the United States Court of Appeals for the District of Columbia Circuit, which held that the DOJ’s 2020 settlement with NAR does not prevent it from reopening its investigation into NAR’s policies, including the cooperative compensation rule and clear cooperation policy.

We disagree with the Court’s decision and share the view articulated by Judge Walker in his dissenting opinion.

To be clear, this opinion in the DOJ litigation does not affect the settlement agreement that NAR announced on March 15th in the class action litigation to resolve nationwide litigation over claims from home sellers related to broker commissions.

Please click here to link to Q&A relating to today’s decision.

In terms of next steps, NAR is reviewing the opinion and evaluating our legal options. As always, we remain steadfast in our commitment to promoting consumer transparency and to supporting our members in protecting their clients’ interests in the home buying and selling process.

Best, Katie Johnson - NAR General Counsel

ABR COURSE In Person

Are you are interested in learning more about working with Buyers? ECBOR is partnering with IAR and several local boards to host an “in-person” ABR course for $35.00 the covers the cost of 12 Hours of CE & Lunch! Course will be held locally at the Matterhorn. Space is limited so register soon if you are interested.

REGISTER HERE

Thanks for our Course Sponsors!!!! Zipform, Meridian Title, Guaranteed Rate, Rocket Mortgage, State Farm Insurance, Next Door Photos

NAR is also offering a free "on-line" ABR Course.

Note; no Indiana CE. Normally, this course cost $295.

FOR MORE INFORMATION

To keep on top of the information sent by NAR

go to facts.realtor (login credentials are required)