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Real estate commissions are negotiable, no matter what any lawsuit says

(FINANCE) An anti-trust lawsuit against major players in the residential real estate industry sheds light on misinformation and misunderstandings about commissions – when you’re buying or selling a home, you’re in the driver’s seat. Negotiate!

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Minnesota home seller, Christopher Moehrl, has filed an class action anti-trust lawsuit, alleging a “conspiracy” to price fix broker compensation in the 2.5-3% range, naming the National Association of Realtors (NAR), Realogy, HomeServices of America, RE/MAX, and Keller Williams (with more to be named, inevitably).

The complaint intimates that by requiring brokers to offer buyer broker compensation when listing a property on the MLS, fees are “fixed” and inflated, violating anti-trust laws. In short, they believe buyer’s agents shouldn’t be paid because buyers can find their home online now.

The class action suit claims that because the seller has to pay the buyer’s agent, commissions are inflated. The truth is that although it is NAR’s rule to require compensation, it could be as little as one cent, and Associations support all compensation models (flat-fee, discount, rebates, traditional 3% per side, and even higher on luxury listings).

Let’s take a look at some of the court documents directly:

8. Defendants’ conspiracy has kept buyer broker commissions in the 2.5 to 3.0 percent range for many years despite the diminishing role of buyer brokers.

This point continues to outline how buyers agents are essentially useless in an era where homebuyers have direct access to listings and can find their own home online. That claim is similar to claims made by anti-Realtor bloggers in the early 2000s, and is wildly uninformed. All agents, no matter which side they represent have a fiduciary duty to their client, negotiate on their behalf, and walk them through (and oversee) a complex financial process.

Beyond that, buyer’s agents are often the person that has to inform a buyer that their dream home they found on Zillow (or other sites that use non-MLS data) actually sold several days ago, or was not real to begin with.

They’re the individuals that have to not only be educated on real estate law and contracts, lending options and processes, but be experts in a certain geographical area and be informed of architectural styles, smart home features, green home features, and so on.

The indication that a buyers agent’s sole value is to pair a homebuyer with a home is ludicrous and objectively false.

17. In that sales transaction, Mr. Moehrl was represented by a RE/MAX franchisee, and the buyer was represented by a Keller Williams franchisee. As part of the sales transaction, Mr. Moehrl paid a total broker commission of six percent, and 2.7 percentage points of the six percentage points were paid to the buyer broker.

It is important to note that it is not illegal to buy or sell a home without representation. It happens every day across this nation. If there was a legal requirement to hire a real estate professional, this lawsuit might have merit. But there is not.

Further, the fact that the buyer broker was only given 2.7 percent indicates that Moehrl negotiated against the supposed 3.0 percent standard the lawsuit is so aggressively fighting against.

Obviously this home seller knew he could negotiate commissions.

Not only did the Plaintiff not have to hire a Realtor, he didn’t have to allow any negotiation of the compensation, given that the buyer side earned 2.7 percent, and his own Realtor earned 3.3 percent.

38. As required by the Buyer Broker Commission Rule, the seller broker makes a blanket, non-negotiable offer of a three percent commission to the buyer’s broker when it lists the home on the local MLS.

The Plaintiff’s attorneys have clearly not done any homework. Compensation is required, that is factual, but there are no bylaws that dictate the amount. It can be as little as one cent. Or as high as 100%, it is all negotiable. All of it.

63. For years, buyer broker commissions have remained steady at two-and-a-half to three percent in the areas in which the Covered MLSs operate despite both an increase in home prices (increasing the dollar amount of the commission) and the diminishing role of buyer brokers described above.

NAR does not track or store broker commission data, and while brokerages individually do, they don’t uniformly or openly share that information with any competing brokers. There is no conspiracy regarding commissions.

The responsibilities of a buyer broker have actually increased over time, not diminished. Ask a broker in 1980 if they had to be well versed in modern marketing, social media strategies, analytics, paperless contract technologies, know the privacy laws regarding the collection and dissemination of information online, and so forth.

To repeatedly argue that anything other than market conditions have determined commission levels is dead wrong. In fact, some would argue that commissions on both sides of the transaction should be higher (and therefore, some brokerages offer services at higher commission levels than 3%).

The takeaway is that all commissions in real estate are negotiable, it’s not a legal requirement to hire a real estate professional when buying or selling a home, and that buyer agent responsibilities and values have actually increased over time.

Anyone in America who doesn’t like a Realtor’s services offered at a specific commission level can negotiate or hire a different Realtor – there is no conspiracy here. This lawsuit has a variety of factually inaccurate statements regarding commissions, and is laughable.

Lani is the Chief Operating Officer at The American Genius and has been named in the Inman 100 Most Influential Real Estate Leaders several times, co-authored a book, co-founded BASHH and Austin Digital Jobs, and is a seasoned business writer and editorialist with a penchant for the irreverent.

Business News

Class action suit hits vape company, Juul for illegally marketing to teens

(BUSINESS NEWS) Juul is a tiny vape stick that is popular among teens, a population the company is allegedly marketing directly to, grooming a new generation of addicts.

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This week, a class-action lawsuit has been filed against Juul for violating federal laws by marketing to American children.

Illinois Senator Dick Durbin and ten of his Democratic colleagues have written a letter to the CEO of Juul Labs, lambasting the e-cigarette company for prioritizing profits over public health. The biggest concern among the complaints that both the legislators and parents across country have against the vaping-tobacco giant is that Juul purposefully advertises their products for teenagers.

Juul denies such intent, claiming that their product (which has taken over two-thirds of the e-tobacco market according to some sources) is primarily to help traditional adult tobacco consumers quit smoking cigarettes. They’ve even released an ad recently that tried to emphasize this image.

However much they try to pivot to this e-cigarette as a self-care market, their own history is against them. According to the research of Robert Jackler, as profiled on the Smithsonian, the imagery that Juul uses in its advertisements is a throwback to the unregulated day of big tobacco in how it overtly entices youth. This is a part of a growing public health crisis.

Juul first became famous for looking like a USB drive, and became used widely by school children who could trick teachers into thinking they were carrying a harmless device, not a nicotine machine.

One of Jackler’s insights is that today’s teenagers were never as likely to begin smoking traditional cigarettes as people from the late 80s and 90s, so they were an untapped market. The New York Times, reporting on the increasing public pressure the FDA faces to regulate the e-tobacco industry, even went so far as to ask, “Did Juul lure teenagers and get customers for life?”

Juul’s reach to the younger generation was also confirmed by a team of researchers from Stanford University. By analyzing social media posts from Juul’s launch in 2015 to last fall, the Stanford team concluded that where Juul’s real innovation in the smoking and e-cigarette industry was not its product, but the way that it mobilized social media to hook young consumers.

According to an interview with Stanford researchers, “Juul hired social media influencers — people with large followings on Instagram — to promote its products. It created hashtags — #juul, #juulvapor, #switchtojuul, #vaporized — that the influencers blasted out to their followings, often featuring images of young people Juuling, or doing tricks or jokes with their device.”

The company shut down its social media accounts last year, but the damage was done. The hashtags are still updated daily.

This sort of bait-and-switch advertising extends beyond Juul’s young American audience and their marketing efforts.

Take for example, an Indian company that recruited Pierce Brosnan for what he believed was a commercial for a breath freshener line. Instead, it was a type of tobacco product called pan bahar (it is similar to chewing tobacco). The star said that he wasn’t aware of the nature of the product, that the company didn’t disclose its harmful effects, saying that he wouldn’t have chosen to endorse it otherwise, as he has lost family members to cancer.

Not wanting to endorse tobacco product, of course, is a commendable stance for Brosnan. But where are the social media influencers that continue to take money from Juul to target teens? Where is their rejection? They could very easily take a cue from Brosnan and say they were unaware, but instead, continue to force feed hashtags down unsuspecting childrens’ figurative throats.

Juul can call themselves an alternative to smoking all they want, but if even our politicians can see through the B.S., Juul has a real problem.

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High School ‘Signing Day’ for seniors starting careers, not sports or college

(BUSINESS NEWS) Our culture has long glorified athletic accomplishments, but as technical trades flourish in America, celebrating that career path is a new move – one we applaud!

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The scene is familiar: excited students at a table overlooking proud parents and teachers with letters of intent before them. “Signing Day” has become a rite of passage for high school seniors intending to continue a sport in college.

However, Henrico County Public Schools in Virginia are celebrating students beginning careers immediately after graduation.

Instead of joining a college football or basketball team, these students are acknowledged for entering the workforce, and for seeking success and financial stability as opposed to going into massive debt by enrolling in college.

College has become a norm in society in spite of the financial risks, and job placement is no guarantee for graduates. The option is not for everyone, and we should be doing more to recognize those who are pursuing technical skills. The objective of education, at any level, is to prepare students for a successful career.

By definition, these seniors from Henrico County have taken the first step towards that goal.

At the signing ceremony, the students met with their future employers to sign letters stipulating what they would do throughout their employment, and outlining the training and benefits. It is a big affair, and in an era where promposals (ugh) are a thing, why not glorify and enthusiastically praise in public an alternative Signing Day?

Students wore hats and shirts representing their future place of employment, and it is worth noting that this is a moment to celebrate adulthood, and making strides towards independence.

Technical skills are in demand, and it’s about time we lift up tradesmen and tradeswomen across the country. Their contributions help make our communities stronger.

Students should feel encouraged to pursue paths towards success which best suits their individual goals. And there is nothing wrong with celebrating them as a community, and hopefully someday, as a society.

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How the Lean concept can have the biggest impact on your bottom line

(BUSINESS) Using the Lean business concept and asking the non-sexy question of “What’s dumb around here?” your business will outpace your competitors in no time.

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Entrepreneurs love solving problems. That’s what they’re good at doing. In fact, the more complex, difficult and messy the problem, the more the entrepreneur will enjoy the challenge. Entrepreneurs are especially good at solving problems that nobody knew were there. Think about Steve Jobs: He knew that we needed a pocket MP3 player before we even knew what it was.

While entrepreneurs are coming up with the next “big” thing, we need the non-entrepreneurs in our organizations focused on solving the small problems in our company with the same enthusiasm. Imagine if every one of your team members were consistently looking for opportunities to improve your systems, processes and service delivery. Those subtle changes made in the non-sexy parts of the business usually have the biggest impact on the bottom line.

This is a business concept called Lean, in which a company changes their processes to create the most benefit to the customer using the least amount of resources possible. Lean is commonly used in the manufacturing industry, but its principles can be used in any business to change the way of thinking and doing things.

I recently witnessed a great example of how Lean principles were used to improve one of my clients, LuminUltra – a leading provider of microbiological testing hardware, software and services. The company serves industries that need to know quickly and accurately what’s living in their water. At a recent quarterly planning session at the LuminUltra offices in Fredericton, Canada, COO Charlie Younger shared a powerful story about the company’s manufacturing facility and challenging the status quo.

During the expansion of the company’s manufacturing facility, one of the team members was lamenting to Charlie about how much time it took to complete a lengthy step of the manufacturing process – one specific quality check that was very time-consuming. He remarked that in the history of the company they never had a single machine fail the test. Charlie’s first thought was, do they even need to perform this specific test again?

After more discussion with colleagues, the team realized that the other quality checks performed earlier in the manufacturing process would always identify a defective unit. With this knowledge, the manufacturing team asked for permission to perform minimal testing to still provide assurance with less work. When presented with the information, the company leadership agreed that it was a great idea and would save time and money as well as improve the employee experience. But the bigger question was: Why hadn’t anyone ever questioned this lengthy step of the manufacturing process before?

Charlie, having run Lean programs in the past, has seen this issue before: People continue to do what they’ve always done even if they think there is a better way. He thought this would be a great opportunity to use a fun, simple but elegant technique to capture other status quo breakers – in other words, he decided to use the same principles for changing the company’s production process to make other company decisions.

With that, he posted a whiteboard in the manufacturing room with the title “What’s Dumb Around Here?” and encouraged team members to capture possible “dumb things” to add to it. These topics are discussed and vetted during their Lean process meetings to determine if they can be improved.

When I discussed the new process with Charlie, he noted, “First, you have to create an environment where people are willing to question the status quo. We have always been highly focused on quality and accuracy, so the team thought it was outrageous to openly question a quality check we had been performing for years.”

He continued, “You have to help your management team be open to receiving ideas that might seem crazy and not overreact to the suggestions. Instead, simply ask them to explain their logic. More often than not, the front line knows a better way to do things but does not know how to navigate the change. The beauty of using Lean techniques is that you now have an easy navigation path to discuss, approve and roll out changes. Suddenly, you have an energized front line solving problems with minimal involvement from management – how great is that?”

While LuminUltra continues to grow their product line and expand into new markets, it expects that its implementation of Lean principles will help it make subtle but important modifications to processes that will positively affect its bottom line. The CEO, Pat Whalen, remarked, “If we can produce our products faster and more cost effectively and get them into the hands of our customers faster, we can have an even bigger impact on the water sector with our microbiological monitoring products. I need all of our team members thinking how we can improve every single day. The water sector needs us.”

Every visionary, big-thinking entrepreneur needs a team that challenges the status quo. How are you encouraging your team members to identify, “What’s Dumb Around Here?”

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