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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.

Business News

Supreme Court okays trademarking for ‘generic’ name URLs

(BUSINESS NEWS) Generic name trademarks have helped to stave off monopolies of broad products and services, but the Supreme Court just ruled that generic company names like Booking.com, can now be trademarked.

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For years, The United States Patent and Trademark Office has denied rights to names termed as “generic.” This was previously used to prevent generic terms from monopolizing a section of the market. It has prevented many companies from doing that as well.

However, as we move into the 21st century we begin to see things that may not be so cut and dry. As usual life gets messy and things are far more grey than they previously have been.

Recently, the US Supreme Court ruled that website names are eligible for a change to the previous trademark rules. The website that pushed for this privilege first, Booking.com that is owned by Booking Holdings Inc., argued that they needed this ruling to stop consumers from following copycats down a rabbit hole and away from their business.

The decision, heavily weighted at 8-1, gives Booking.com, nationwide legal protection against competing companies trademarks.

A remark released later by Justice Ruth Bader Ginsburg and the Supreme Court states, “We have no cause to deny Booking.com the same benefits Congress accorded other marks qualifying as nongeneric.” An argument quoted from the decision continues as since, “‘Booking.com’ is not a generic name to consumers, it is not generic.”

This stance, taken by the majority, exemplifies a firm position on the rights of the individual companies’ abilities to identify themselves as they see fit.

The lone dissenting vote coming from Justice Stephen Breyer who argued that he fears that this decision “will lead to a proliferation of ‘generic.com’ marks, granting their owners a monopoly over a zone of useful, easy-to-remember domains.”

Honestly, if you can’t come up with your own domain that either incorporates, but doesn’t copy, or gets your point across without being too generic, you may need to hire a PR person.

This move forward from the Supreme Court opens up a lot of possibilities for people to be creative with their businesses. If generic and simple names will be the norm, then people will have to think outside the box in the future. Bring on the challenges.

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New company beats Amazon with next morning delivery?

(BUSINESS NEWS) Amazon has a new competitor in South Korea: Coupang, with faster shipping than Prime.

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What if I told you Amazon Prime’s, 1-3 day guaranteed delivery time isn’t the fastest e-commerce service the world has to offer? You would think I’m lying right?

Coupang, one of the world’s fastest delivery services located in South Korea, allows you to order any item, anytime before midnight, promising that it will be at your doorstep by 7am! (I wasn’t lying!) With 70% of its employees living within a 10 minute radius of a Coupang center, 80% of residents residing in populated cities and 95% of it’s population owning a smartphone, South Korea has become the perfect e-commerce epicenter. Coupang employees over 10,000 people who together deliver 99.3% of all orders within 24 hours. Imagine it’s Tuesday night, you’re falling asleep and suddenly remember you forgot to get your wife a present for her 50th birthday tomorrow. You have two options: accept your fate of being put in the dog house for three long weeks, or quickly order a few great items off Coupang’s website that’ll be delivered BEFORE she even wakes up!

Like Amazon, Coupang allows its customers to create a profile, store desired products in a list, and check out using your saved payment method. Half of South Korea’s total population of 51.6 million has installed Coupang’s app with a surge of people trying Coupang for the first time during stay at home orders due to the Coronavirus pandemic. The company struggled to meet fulfillment demands, especially those including PPE, household cleaning products, and children’s necessities. While many companies are struggling to stay afloat, Coupang is quickly adapting to meet consumer demands. In March, the company opened a new logistics center to expand its overnight/same day delivery services and is currently working to reach an even broader population.

Believe it or not, right before Coupang received a $2 Billion investment from SoftBanks, its founder, Kim Bom debated walking away from it all. Bom founded the company in 2010, receiving the investment in 2018 and is expected to pursue an IPO by the end of 2020. So for all of you entrepreneurs wondering if you should give up on that decade long dream…DON’T. Coupang went from selling a few hundred items each day to 3.3 million. Now that’s what you call entrepreneurism!

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Google plans to pay publishers for content (a little too late)?

(BUSINESS NEWS) Google will finally pay publishers for news, but only a few, and they have to meet Google standards.

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I mean…could you get any greedier Google? (Chandler Bings voice).

After years and years of pressure and complaints from publishers that Google’s search feed doesn’t properly recognize them or the news they work so hard to report, Google has finally announced that they will begin to pay publishers for content. But only some.

WHAT A LOAD OF BS.

According to the News Media Alliance, Google profited 4.7 BILLION in 2019 as a search engine for the news industry. So now, not only is Google fleecing its content providers and the writers who are working to create material for them, but it’s quite likely that Google’s algorithm is pushing paid news to the top of its search feed. What does this mean for users? It means that for one, you will see what they want you to see, but most importantly, it means that Google HAS the money to pay its publishers but chooses not too!

Google’s announcement to start paying publishers excludes all publishers outside Brazil, Germany, and Australia. Even within the countries that Google closed a deal with, there are many that do not meet its “high quality content” requirement for a paid position. The problem with all this nonsense is that we stopped letting the news come from others like us, and instead, according to the U.S News Media Alliance, the news is entirely owned by a handful of companies. You may have 635 channels on your TV, but if you google…or maybe you should duck duck go it, you’ll find that all those channels lead back to one huge organization.

SO WHAT THE HELL IS GOING ON?

Google has definitely been pressured to make some big changes, and while paying publishers is a good first step in the right direction, is it enough to make up for years of damage?

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