agent commission Archives - Real Estate News and Commentary

July 16, 2022July 16, 2022

Back to the future for residential real estate

If you consider the roots of brokerage in residential real estate, you can imagine how much the business of selling homes has changed. Unlike today, the first real estate brokers were independent. Their “listings” were exclusive and proprietary. Buyer agents didn’t exist until well over one hundred years later. And at the beginning, there was no broker cooperation on listings and commissions.

Of course, everything changes over time. Brokerage cooperation began with loose networks of brokers who agreed to help sell each other’s listings. Early multiple listing services evolved out of those local networks. And as the real estate industry adopted emerging technologies, the MLS concept evolved into the listing service we know today.

The MLS framework promoted the evolution of real estate brokerage as well. Centralizing and standardizing listed homes made home searching easier for brokers and their respective buyers.

Brokerage cooperation allowed agents and brokers to sell others’ listings to buyers. Up until the early 1990’s, all agents and brokers represented the home seller. However, it’s likely technology and a robust MLS fostered buyer agency and dual agency.

It seems as if it wasn’t until the advent of buyer agency when people began questioning agency and compensation. Prior to buyer agency, the commission was negotiated between the listing broker and the home seller. Selling agents (those who brought the buyer) were a subagent of the seller, so it made sense that the commission would be shared with subagents.

The commission structure of today’s listing agreements seems to be an antiquated carryover, where commissions are “shared” with sub agents and exclusive buyer agents.

As an aside, it’s common, if not required, for a buyer agent to disclose to their clients their compensation amount. If the coop commission is less, they will likely collect it from their client.

Currently, real estate agent and broker compensation is undergoing a meticulous and exacting scrutiny inside and outside of the industry. During the last two decades, there have been legal challenges to the industry’s status quo on residential agent and broker compensation. However, recent legal proceedings have gained traction such that a growing number of real estate brokers are embracing a possible future with “decoupled” commission.

When change is afoot in the housing industry, there is a lot at stake for real estate brokerages. Although the outcome to the current challenges of real estate compensation is uncertain, the result may be that residential real estate brokerage comes full circle, where buyer and seller compensation are respectively exclusive.

By Dan Krell
Copyright © 2022

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Disclaimer. This article is not intended to provide nor should it be relied upon for legal and financial advice. Readers should not rely solely on the information contained herein, as it does not purport to be comprehensive or render specific advice. Readers should consult with an attorney regarding local real estate laws and customs as they vary by state and jurisdiction. Using this article without permission is a violation of copyright laws.

May 24, 2019November 23, 2021

Buyer agent commission controversy

One of the hottest controversies in real estate that you have yet to hear about is who should pay buyer agent commissions. Agent commissions controversies have been around in one form or another for decades. The commissions issue typically becomes front and center when the housing market is doing well. This time, however, the buyer agent commission controversy is gaining steam and has the potential of changing (and possibly upending) residential real estate and online real estate platforms.

The debate is center in an anti-trust class action law suit filed against the National Association of Realtors and a number of major real estate brokerage brands. As I reported last month, the law suit alleges that the defendants engaged in “anticompetitive practices.” Among the alleged issues listed in the law suit, includes a “Buyer Broker Commission Rule” that requires buyer agent compensation for a home to be listed in the MLS.

Regardless of how a listing agreement “structures” broker commissions, the perception and general acknowledgement is that the (buyer broker) buyer agent commission is paid by the seller. The seller typically pays the listing broker a commission, which is shared if another broker represents the buyer. This commission “pass-through” is responsible for the growth of online platforms selling home buyer leads and contacts. It has also been responsible for the growth of real estate groups that act as “buyer mills,” which rely on high volume leads generated via online platforms and other means. It can be argued that because of Buyer Broker Commission Rules, the billions of dollars that are generated and spent on home buyer leads (as well as buyer rebates) can be traced back to the home seller.

Home sellers are not the only victims. A study (jstor.org/stable/24887258) conducted by Joachim Zietz and Bobby Newsome (A Note on Buyer’s Agent Commission and Sale Price; The Journal of Real Estate Research; 2001, Vol.21 No.3 p.245-254) revealed that buyer agent commissions had a positive effect on home sale price, but only on lower-priced homes. The conclusions suggested that buyer agents “do not act in the best interest of their clients because of the institutional structure of sales commissions.”

Is it possible that the MLS perpetuates steering and anticompetitive behavior? A recent study by Barwick, Pathak and Wong (Conflicts of Interest and Steering in Residential Brokerage; American Economic Journal; 2017, Vol.9 No.3 p.191-222) has shocking conclusions that resonates with those who are wary of the residential real estate industry. The study pointed out that real estate commissions are higher the US than other industrialized countries. The authors concluded, “Properties listed with lower commission rates experience less favorable transaction outcomes…they are 5% less likely to sell and take 12% longer to sell. These adverse outcomes reflect decreased willingness of buyers’ agents to intermediate low commission properties (steering)…” They “provide empirical support for regulatory concerns” because the data indicates buyer agents will steer their clients towards homes paying higher commission.

Home sellers can learn from home builders about marketing and agent compensation. Home builders figured out buyer broker commissions a long time ago. They will not pay advertised compensation to buyer brokers who don’t show up with their clients. And during hot markets, they pay a modest referral fee in lieu of commission.

All things considered, the issue of buyer broker commission is a complex issue that depends on multiple factors, including market conditions. However, increasing awareness is inventing new business models and lower buyer broker compensation expectations.

Original located at https://dankrell.com/blog/2019/05/24/buyer-agent-commission-controversy

By Dan Krell
Copyright © 2019

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April 2, 2019June 3, 2019

Negotiating agent commissions

It’s no secret that residential real estate agent commissions are decreasing. Market forces has created new broker models that has put downward pressure on commissions. Many agents embrace consumers negotiating agent commissions.

If market forces are working in negotiating agent commissions, and commissions are decreasing, you might wonder about a recent class-action law suite.

If successful, an anti-trust class-action law suit filed March 6^th could potentially change the landscape of the residential real estate industry. The law suit alleges that the National Association of Realtors and a number of major real estate brokerage brands engaged in “anticompetitive practices.”

According to the law firm Hagens Berman (hbsslaw.com), “the lawsuit alleges NAR and the Big Four have enacted a set of anticompetitive policies intended to prevent competition among real estate brokers, as well as stopping buyers and sellers form negotiating commissions, including: Only allowing listing brokers to list a property on an MLS if the listing broker makes a unilateral, non-negotiable offer of compensation on the MLS to buyer brokers. Prohibiting buyers and sellers from negotiating buyer broker commission. Prohibiting brokers from disclosing commissions offered on MLS. Allowing brokers to take both buyer and seller commissions, if the buyer is not represented by a broker. This anticompetitive activity has been devised at the national level and enforced at the local levels.”

I am not an attorney, but I have been listing and selling homes for over seventeen years. These thoughts are my own. I am not speaking for anyone except myself. I am offering insight from my professional experience.

On the face of it the lawsuit assertions are false. First, the allegations make it sound as if home sellers have no choice in how they sell their home except to use a full-service exclusive real estate broker. As I wrote just last month, home sellers have many options in selling a home. Besides selling “By Owner,” there are multiple broker options as well, including (but not limited to) MLS placement services, limited services and à la carte.

These assertions also make it sound as if a home seller can only get an “exclusive right to sell” listing agreement with a real estate broker. But again, the home seller has options in the type of listing agreement and broker agency type. Because my space is limited and the issue of brokerage representation is technical, I won’t expound on the types of listing agreements and home seller representation. However, each type of listing agreement has specific benefits and disadvantages.

Furthermore, commissions have always been negotiable. And market forces have been in favor of consumers negotiating agent commissions. The lawsuit’s assertions about real estate commissions are misconceived and cliché. The matter of real estate commissions can be complex and depends on a number of factors, which can include (but is not limited to) market conditions, type of representation, types of services provided, among other things. Additionally, home sellers are not the only party to a transaction that negotiates commission. Home buyers who are represented by a broker negotiate the buyer agent commission as well.

The internet has created an empowered savvy consumer. Like other industries, public access to information (internet) has been a major factor in reducing real estate broker fees and commissions. Both listing broker and buyer agent commissions have decreased. The internet has allowed home buyers to find home listings on their own regardless of advertised buyer agent compensation, including non-MLS listings such as home builder and FSBO listings.

Although the NAR has yet to issue a formal statement, NAR vice president Mantill Williams was quoted as saying on Fox Business’ Bulls and Bears program, “We think this lawsuit is baseless and it has no merit. The state and federal courts have considered challenges to the MLS and they’ve concluded the Multiple Listing Service actually benefits consumers.”

Original published at https://dankrell.com/blog/2019/04/02/negotiating-agent-commissions/

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