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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 [in April], 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.

This story was first published in April of 2019.

Lani is the Chief Operating Officer at The American Genius - she has 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.

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3 Comments

3 Comments

  1. Kyle Kopytchak

    July 4, 2020 at 11:44 am

    Great article!

  2. Pingback: REX anti-trust lawsuit accuses Zillow, NAR of being in a 'cartel'

  3. Pingback: NAR pushes back on DOJ's reneging on antitrust settlement

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Business News

Leadership versus management: What’s the difference?

(Business News) The two terms, leadership and management, are often used interchangeably, but there are substantial differences; let’s explore them.

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leadership Startups meeting led by Black woman.

Some people use the terms “leader” and “manager” interchangeably, and while there is nothing inherently wrong with this, there is still a debate regarding their similarities or differences.

Is it merely a matter of preference, or are there cut and dry differences that define each term?

Ronald E. Riggio, professor of leadership and organizational psychology at Claremont McKenna College, described what he felt to be the difference between the terms, noting the commonality in the distinction of “leadership” versus “management” was that leaders tend to engage in the “higher” functions of running an organization, while managers handle the more mundane tasks.

However, Riggio believes it is only a matter of semantics because successful and effective leaders and managers must do the same things. They must set the standard for followers and the organization, be willing to motivate and encourage, develop good working relationships with followers, be a positive role model, and motivate their team to achieve goals.

He states that there is a history explaining the difference between the two terms: business schools and “management” departments adopted the term “manager” because the prevailing view was that managers were in charge.

They were still seen as “professional workers with critical roles and responsibilities to help the organization succeed, but leadership was mostly not in the everyday vocabulary of management scholars.”

Leadership on the other hand, derived from organizational psychologists and sociologists who were interested in the various roles across all types of groups.

So, “leader” became the term to define someone who played a key role in “group decision making and setting direction and tone for the group. For psychologists, manager was a profession, not a key role in a group.”

When their research began to merge with business school settings, they brought the term “leadership” with them, but the terms continued to be used to mean different things.

The short answer, according to Riggio is no, not really; simply because leaders and managers need the same skills to be productive and respected.

This editorial was first published here in June of 2014.

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Does Raising Cane’s have the secret to combatting restaurant labor shortages?

(NEWS) Fried Chicken Franchise, Raising Cane’s, has turned to an unusual source of front-line employees during the labor shortage- Their executives!

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White paper sign with black text reading "Help Wanted."

I wouldn’t call myself a fried chicken aficionado or anything, but since chains are designed to blow up everywhere, I have experienced Raising Cane’s.

I’m pretty sure the Cane’s sauce is just barbecue mixed with ranch, but hey, when you’ve got a good idea, keep with it.

In the further pursuit of good ideas, the company has resorted to an intriguing method of boosting staff in a world where the lowest paid among us are still steadily dying of Covid, and/or choosing to peace out of jobs that they don’t find worth the infection risk.

Via Nation Restaurant News: “This is obviously a very tough time, so it was a joint idea of everybody volunteering together to go out there and be recruiters, fry cooks and cashiers —whatever it takes,” said AJ Kumaran, co-CEO and chief operating officer for the Baton Rouge, La.-based quick-service company, from a restaurant in Las Vegas, where he had deployed himself.”

The goal of this volunteer mission, which involves 250 of the 500 executives deployed working directly in service roles, is to bolster locations until 10,000 new hires can be made in both existing locations and locations planned to open.

It’s obvious that this is a bandaid move – execs exist for good reason, and in terms of sheer numbers (not to mention location and salary changes), this is hardly tenable long-term. But I can say this as someone who’s gone from retail to office, and back (and then forth…and then back again) several times – if this doesn’t keep everyone at the corporate level humble, and much more mindful of employees’ needs, nothing will.

The fast-food world is notorious for wonky schedules only going up a day before the week begins, broken promises on hours (both over and under), horrendous pay, and little to no defense of employee dignity in the face of customers with rank dispositions. With the wave of strikes (Nabisco, John Deere, IATSE) making the news, and lack of hazard pay/brutal physical attacks over mask mandates still very fresh in workers’ minds, smart companies are hipping themselves to the fact that “low level” employee acquisition and retention needs to be much more than the ‘work here or starve’ tactics that have served since the beginning of decades of wage stagnation. The best way for that fact to stay front-of-mind is to go out and live the truths behind it.

In Raising Cane’s case, the company also announced that they’re upping wages at all locations — to the tune of an actually not totally insulting $2 per hour, resulting in a starting wage of $15 and a managerial wage of $18.

Ideally, paying people more to cook, clean, and customer service all in one job will actually attract people back to fast food work. Seriously consider the fact that the people cleaning fast-food toilets are the same people making the food that goes into your mouth. The additional fact is that it’s better for everyone’s health when they’re paid enough to care about what they’re doing and stay healthy themselves.

Of course, one does also need to consider how much inflation has affected the price of goods and housing since the ‘fight for $15’ began almost a decade ago in 2012. Now, raising wages closer to the end point of multiple goods still might not be enough!

AJ Kumaran continued, “The chicken prices are through the roof. Logistics are very hard. Shipping is difficult. Simple things cups and paper napkins — everything is in shortage right now. Some are overseas suppliers and others domestic suppliers. Just in poultry alone, we have taken significant inflation.”

That’s global disruption for ya.

It remains to be seen whether this plucky move can save Raising Cane’s dark meat, but I’m very pro regardless. Send more top-earning employees into the trenches! No more executives with 0 knowledge of how the sausage sandwich gets made.

No more leading from behind.

Why not? What are ya? Chicken?

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Business News

Unify your remote team with these important conversations

(BUSINESS NEWS) More than a happy hour, consider having these poignant conversations to bring your remote team together like never before.

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Woman working in office with remote team

Cultivating a team dynamic is difficult enough without everyone’s Zoom feed freezing halfway through “happy” hour. You may not be able to bond over margaritas these days, but there are a few conversations you can have to make your team feel more supported—and more comfortable with communicating.

According to Forbes, the first conversation to have pertains to individual productivity. Ask your employees, quite simply, what their productivity indicators are. Since you can’t rely on popping into the office to see who is working on a project and who is beating their Snake score, knowing how your employees quantify productivity is the next-best thing. This may lead to a conversation about what you want to see in return, which is always helpful for your employees to know.

Another thing to discuss with your employees regards communication. Determining which avenues of communication are appropriate, which ones should be reserved for emergencies, and which ones are completely off the table is key. For example, you might find that most employees are comfortable texting each other while you prefer Slack or email updates. Setting that boundary ahead of time and making it “office” policy will help prevent strain down the road.

Finally, checking in with your employees about their expectations is also important. If you can discuss the sticky issue of who deals with what, whose job responsibilities overlap, and what each person is predominantly responsible for, you’ll negate a lot of stress later. Knowing exactly which of your employees specialize in specific areas is good for you, and it’s good for the team as a whole.

With these 3 discussions out of the way, you can turn your focus to more nebulous concepts, the first of which pertains to hiring. Loop your employees in and ask them how they would hire new talent during this time; what aspects would they look for, and how would they discern between candidates without being able to meet in-person? It may seem like a trivial conversation, but having it will serve to unify further your team—so it’s worth your time.

The last crucial conversation, per Forbes, is simple: Ask your employees what they would prioritize if they became CEOs tomorrow. There’s a lot of latitude for goofy responses here, but you’ll hear some really valuable—and potentially gut-wrenching—feedback you wouldn’t usually receive. It never hurts to know what your staff prioritize as idealists.

Unifying your staff can be difficult, but if you start with these conversations, you’ll be well on your way to a strong team during these trying times.

This story was first published in November 2020.

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