I am a member of NAR, and for full disclosure, I am not an attorney. I reviewed the various complaints and performed research, discovering information that could aid in the defense. In my view, Plaintiff (Conti-CA) makes misleading claims and adds assertions to muddy the waters in this class-action suit.
“Requiring every seller‐broker, when listing a property on an MLS, to make a “blanket unilateral offer […] of compensation” to any buyer agent who may find a buyer for the home;”
This is misleading; compensation is not paid to agents who “find a buyer for the home.” Commissions are earned upon an Agent procuring a client who successfully closes on a transaction that includes mutually agreed terms and conditions. This is not an adversarial transaction, despite how Attorneys try to frame it. Sellers want to sell; Buyers want to acquire, and Agents facilitate.
Moreover: “Requiring that the offer of compensation to the buyer agent be a blanket offer — i.e., the exact same compensation terms must be simultaneously offered to every buyer agent without regard to their experience, the services they are providing to the buyer, or the financial arrangement they have made with the buyer;”
If a Buyer’s Agent procures a Buyer who successfully acquires a residence at a price and terms agreeable to the Seller, then “compensation terms must be simultaneously offered to every buyer agent without regard to their experience” is irrelevant.
Furthermore, I challenge these “high power” law firms to name a profession where compensation is not established upfront.
Additionally, they claim “NAR’s requirement that offers of compensation be expressed in specific dollar or percentage terms enable buyer agents to easily compare the financial compensation offered to them by home sellers and steer their clients to higher commission homes.”
Would the Plaintiff’s Counsel share an alternative method for conveying compensation? Maybe the Peso so Agents would take extra steps using currency converters?
In the same complaint, Plaintiffs assert, “According to data from the NAR, many homebuyers no longer locate prospective homes with the assistance of a broker, but rather independently through online services. Buyer agents increasingly have been retained after their client has already found the home the client wishes to buy.”
These assertions obliterate the Plaintiffs’ allegations of massive steering. If a Consumer finds a home, and a Realtor refuses to show the house, the Consumer will find another Agent. Zillow had 9.8 billion page views in 2020.
The most significant allegation is that a conspiracy exists between NAR members to use the MLS to create a supra-competitive pricing scheme, and decoupling agent commissions (each Consumer pays their agent) would result in a significant decline in commission structures.
This claim fails.
1st Plaintiffs attempt to frame the argument based on the percentage of the sale price when the fees to transact are a superior factor. Consumers bank dollars, not percentages. Moreover, they cherry-pick a few markets with an emphasis on Singapore as examples of lower commission percentages.
In a three-minute discovery session, I researched the US v Singapore markets, and these are my findings.
- The average price of a US residence totaled $389,400 (based on 2019 data.)
- The commission paid, based on the US average of 4.94%, totaled $19,236
- The average price of a Singapore residence totaled $874,372 USD.
- The commission paid, based on the Singapore average of 3%, totaled $26,231 USD.
Moreover, some publications suggest there is commission sharing between Buyer/Seller Agents in Singapore. Again, Consumer’s bank dollars, not percentages, it appears that the Plaintiff’s counsel is oblivious to this variable.
It is MORE expensive to transact in Singapore.
I have found no evidence that decoupling reduces commissions. As shown in the following images, I discovered the opposite based on a 2015 study by the Wall Street Journal. The WSJ articles display in the first position when performing a simple Google search; however, I have yet to see WSJ commission studies cited in any complaints. Alternatively, they cite studies from 2002. Furthermore, the US average rate is only slightly higher than the 10-Country average.
Counterclaims Against Plaintiffs
In my view, a reasonable person would conclude Plaintiffs used irrelevant data and omitted material information. Most purchase agreements include language similar to “ATTORNEY FEES: In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller.”
Considering Plaintiffs are suing NAR, the four largest Brokerages, the MLS system, and smaller Brokers as co-conspirators, these misleading claims impact 1000’s firms, so I suggest counterclaiming Plaintiffs for $5,000,000 and publicize it.
This may deter Consumers from engaging with ambulance-chasing law firms.
The issue of who pays commissions is irrelevant and undeterminable because Sellers will claim they are deducted from net proceeds while Buyers will claim it is baked into the purchase price, thus commissions are paid by Buyers. Even the various class-action claims conflict related to the party paying commissions.
In reality, the commission percentage assertions are a feeble attempt by parties to create an apples-to-apples comparison to other markets, however the information included in this opinion makes these claims defective.
It is time to inflict an overwhelming response.
NAR updates code of ethics – here’s why it matters
(REAL ESTATE ASSOCIATION) The NAR amended their code of ethics to cover hate speech online – a decision for which we’ve been waiting for years.
The National Association of Realtors voted to amend their realtor code of ethics in November 2020, leading to a crucial addition that will change the way realtors approach off-duty interactions and behavior—for the better.
This motion passed on the heels of several reports regarding disturbing speech and actions from realtors. While the comments in question were allegedly restricted to social media, some other members of the NAR went so far as to do things like remove property (e.g., Black Lives Matter signs) from neighbors’ yards. This clearly constitutes an ethical violation, but the line isn’t always so clear-cut—hence the updated code of ethics.
According to the revised code, any kind of hate speech or dissenting behavior toward protected classes from realtors will constitute a violation; this includes comments or harassment based on race, sex, gender identity, sexual orientation, religion, age, and much more. Should a realtor be found guilty of making such comments, they could face severe penalties.
Changing the code of ethics to reflect common decency is a part of this decision, but it isn’t the most important component. By adopting and enforcing these changes, the NAR gets one step closer to fair housing for all—something that many realtors consider to be of paramount value.
“[Fair housing] is something near and dear to my heart, and most Realtors’ hearts,” says Jennifer Stevenson, president of the New York State Association of Realtors and board member for the NAR.
Some may view this addition as meddlesome—after all, what one says in their private life and on social media has a certain impervious air to it. But the fact remains that realtors really are public servants; by that logic, they should be held accountable for their words whether they are on-duty or off—just like all other public servants.
Furthermore, realtors represent real estate as a whole; the institution itself deserves to be able to eradicate the member status of anyone who violates the ethics held by that institution. It’s a simple concept: Society is—or should be—moving towards greater acceptance and support of protected classes, and that support includes fair housing. Anyone who isn’t on board with that, even if it’s “just in their personal life”, should jump ship now.
NAR and AARP partner to create livability index for house hunting
(REAL ESTATE ASSOCATIONS) The National Association of Realtors® and AARP integrated the AARP Livability Index scores across the Realtors Property Resource® platform.
When you’re searching for your dream home, there are a lot of things to consider besides what you can afford from a financial standpoint. Factors such as being able to have a short commute to work, living in an area with a good school district, or being close to nearby entertainment and restaurants are all things you might take a look at. These are all considered livability factors — the measure of how various community characteristics play into where you choose to live.
Having access to all this information can be difficult to come by, especially if you live out of state and aren’t familiar with the area. The information you do have access to is what is available in the home listing and answers you get from your realtor or seller, but not much else.
So, where can you go to get that information? Well, the National Association of Realtors® and AARP are making it less of a hassle to acquire that information. In a joint effort, the two are integrating the AARP Livability Index scores across the Realtors Property Resource® platform.
“One of AARP’s goals through this collaboration with NAR is to help people better understand their housing needs over their lifetime and address the barriers that prevent people from living in their desired communities as they age,” said Rodney Harrell, VP of Family, Home & Community at AARP. “We are thrilled about the AARP Livability Index integration as it will provide homebuyers and other movers with the necessary information to make informed choices that meet their needs for today and into the future.”
To assist and give property buyers a chance to make “age-friendly decisions and purchases for the home”, the Index will offer insights on community factors. The tool will access these 7 categories of livability:
- Housing (affordability and access)
- Neighborhood (access to life, work, and play)
- Transportation (safe and convenient options)
- Environment (clean air and water)
- Health (prevention, access and quality)
- Engagement (civic and social involvement)
- Opportunity (inclusion and possibilities)
The tool will score each neighborhood between 0 to 100, with an average score being 50. Communities with more diverse features that appeal to all ages, incomes, and abilities will score higher than those that are not.
Although a total livability score is based on the average of all 7 category scores, the Index lets you customize your score based on your personal preferences. If transportation is more important to you than housing or the environment, the tool will take into account what you set as most important.
The AARP Livability Index will give Realtors® access to “robust national data” that can be broken down by address, ZIP Code, city, or county to share with buyers. This data will have information on updated metrics and policies. You’ll also be able to compare up to three community performances side by side and even share a score on social media.
What is considered “livable” is different for each person. It can be that affordable home right in the middle of town or that spacious house removed from the bustling city. Whatever your form of livability is, the AARP Livability Index score aims to help you find the right home in just the right community.
NAR supports economic inclusion for equal housing opportunities
(REAL ESTATE ASSOCIATIONS) The NAR is pushing to insure anyone who wants a home can get one through a combination of economic inclusion, and eliminating implicit bias.
The National Association of Realtors® is working with the U.S. Chamber of Commerce’s Equality of Opportunity that addresses accessibility to housing based on economic inclusion. NAR CEO Bob Goldberg said,
“We believe that building a better future in America begins with equal access to housing and opportunity. With ongoing residential segregation contributing to many problems in our society, NAR recognizes that this nation cannot achieve true economic equality without first achieving true equality in housing. Our commitment to this cause and to Fair Housing has only strengthened in response to recent tragedies in America.”
What is economic inclusion?
According to the FDIC, economic inclusion describes the efforts to bring underserved communities into the financial mainstream. This could include things like making sure consumers have access to bank accounts and financial services; protections against discriminatory lending practices; and other types of consumer protections. Although the FDIC’s efforts seem to focus on unbanked and underbanked consumers, economic inclusion reaches around to all financial transactions, including housing.
Research from the Brookings Institution cites barriers to economic inclusion as slowing economic growth in local communities. Giving underserved communities access to financial products and opportunities actually spurs the local economy. The government bears the weight of services for the underserved. For example, childhood poverty costs the U.S. economy about 4% of the GDP annually. Nationwide, that is about $500 billion a year. Economic inclusion gives people a way out. It’s not a hand-out, but education and opportunities to change the future.
The NAR is making real change for the underserved
Last week, it was announced that the NAR introduced tools that would reduce implicit bias. Goldberg said, “NAR has spent recent years reexamining how our 1.4 million members can best lead the fight against discrimination, bigotry, and injustice.” The NAR isn’t just talking about it. They’re putting their money behind inclusion, and preventing unfair housing practices. These kind of changes matter for everyone.
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