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NAR seeks dismissal of flawed anti-trust lawsuit (Moehrl v. NAR, et. al)

(REAL ESTATE NEWS) The fallout from the widespread, flawed anti-trust lawsuit against the real estate industry, is beginning, and NAR says they intend to fight back.

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At the annual Association Executive Institute (AEI) event, there was an underlying vibration of curiosity leading up to the legal update over lunch. While a handful of people were cheerfully humming along to a Beatles song being played in the massive ballroom, the majority were whispering about the class action lawsuit recently lobbed at the industry like an irrationally thrown surprise molotov cocktail.

Filed by Minnesota home seller, Christopher Moehrl, the suit claims there is 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.

NAR has been sued before. All major brokers have been sued for similar “conspiracies,” and agents know the drill. The industry has been sued before. It’s one of the most litigious lines of work in America. And everyone in the industry agrees the claims are outlandish and untrue. And frankly, worthy of an exaggerated eyeroll.

So why the palpable angst?

Because the suit is led by big scary attorneys that are famous for winning billions in class action lawsuits. Look at the final two pages of the suit – this isn’t just some random lawyer on a whim, it’s an overcrowded dais of dynamism.

Not to mention real estate consultant Rob Hahn’s observation that if the lawsuit is somehow successful, “REALTOR Associations evaporate, the MLS likely dies off, and the entire infrastructure of residential real estate in the United States has to be remade.”

Of course a room of over a thousand Association Executives (AEs) would wonder what NAR has to say next. NAR’s response leading up to this luncheon had been to publicly denounce the suit as “baseless,” noting that “The U.S. Courts have routinely found that multiple listing services are pro-competitive and benefit consumers by creating great efficiencies in the home-buying and selling process,” and that “NAR looks forward to obtaining a similar precedent regarding this filing.”

The lunch began with NAR General Counsel and Chief Member Experience Officer, Katie Johnson, updating eager eaters on insurance topics, and afterwards pondered that there was something else she was going to talk about… Oh, what was it? Oh yeah, the lawsuit! Her zinger was awarded with thunderous laughter and applause. The presentation behind her said in bold letters, “We’ve been sued… now what?”

Johnson described home seller Moehrl as a “standard transaction” that is in no way unique. She proclaimed that the industry would prevail. That this isn’t the first time they’ve been sued.

She asked the anxious audience to “step back 100 years,” noting that “it is important to understand and be able to articulate why our system today works.”

A century ago, before associations and licensing laws, it was “very chaotic” and not at all consumer oriented, with little to no consumer protections. A home seller would have a dozen brokers put signs in their yard, and not only did the seller have to give their personal financial information to multiple brokers, but had to also give physical access to all of those brokers. Mass confusion ensued – who actually has all of the details? Who represents the home?

And buyers had to know a broker with a sign in a yard in order to find a home to buy. Johnson called this time as one “shrouded in secrecy and was not transparent – it was not good for consumers.”

Thus, brokers began getting together and exchanging information. The idea was that a broker will list the home, and if another brings a buyer, they’ll be compensated. Agreeing to share inventory was what Johnson called a “wild sea change.” Consumers could give their private information and home access to one trusted broker, and that represented buyers were legitimate.

Buyers could come to one place (the association exchange) for the data, which opened the market to consumers. Many iterations of how the data has been shared include notecards, then books/binders, computers, and ultimately the internet.

“In the end,” said Johnson, “cooperation (sharing your listings and compensation), agreeing to pay the representative of a buyer who is going to ultimately sell your inventory is the basis of the MLS and is what is on attack.”

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).

And their “conspiracy” claims that buyer’s agents are unnecessary since listings can now be found online (but the suit fails to mention buyer’s agents’ fiduciary responsibility to protect their client and guide them through a convoluted process). And ultimately, they name “co-conspirators” as brokers who have conspired to violate anti-trust laws via their membership to an MLS.

Another flaw in the Moehrl case is that they argue that home buyers can find their home online without representation, ignoring that the converse argument would also therefore hold true – a homeowner can sell their own home without representation (and without paying commissions). The plaintiff saw the value of the MLS and cooperative marketing when buying and selling their home, and used representation rather than opting to list on their own on Zillow or a For Sale By Owner site, which they had every right to do.

And finally, there is a massive conflict of interest with these attorneys – it is essentially legal for attorneys to practice real estate (local laws vary), so why wouldn’t they collectively push against an industry they could theoretically take over with the bang of a lone judge’s gavel?

NAR has filed a motion to extend the time to respond, and will push for a dismissal. Johnson said, “we have really good legal standing,” noting that “anti-trust [laws are] complex, and not often won on a motion to dismiss,” and while they know it’s not often granted, she notes that it may take time, but, “we’re going to defend it and win.”

The session ended with shuffling plates and standard conference noise, but there were more people humming to the Beatles after the session than before. The fight was on, and the AEs appeared to stand taller, newly empowered by Johnson’s battle cry.

Real Estate Brokerage

Pocket listings: The key to success in hot housing market?

(REAL ESTATE BROKERAGE) Despite NAR’s attempts to shut the door on pocket listings, the reality is that premarket sales are almost a necessity for buyers in hot markets.

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Dark house at dusk, a possible pocket listing to be snatched up.

Hot housing markets are like the “Hunger Games” right now – and the odds are definitely not favoring home buyers.

In fiery markets like Austin, high demand and low inventory are juicing prices and sometimes bringing an unprecedented number of offers. A home in the desirable, centrally located neighborhood of Crestview recently drew 27 offers, says Lisa Boone, Realtor, GRI, with Waterloo Realty. “Everyone is fighting over the same properties.”

For some buyers, that competition makes tapping into the robust, but controversial, “pre-MLS” private-listing ecosystem feel almost like a necessity. “My job has gone from trying to get people a deal on a house to getting someone a house, period,” says Anna Uliassi, associate broker with Compass in Austin. “I’d say it’s gotten crazier in the last six months.”

That private, or pocket, listing ecosystem is shifting, too.

Well-connected agents who find or sell off-market properties through friendly phone calls to their networks and tapping into private online forums have been told to cut it out. In a bid to level the playing field, the National Association of Realtors has essentially banned pocket listings with its “MLS Clear Cooperation policy,” As of May 1, 2020, agents must list properties on MLS within one business day of “public marketing,” which includes phone calls, forum posts, and even the buzz-building “coming soon” signs.

“There are no more private listings, unless the listing is kept private within your own brokerage,” Romeo Manzanilla of Realty Austin told the Austin Business Journal in August. “It keeps the integrity of the MLS from the data perspective. It also allows all MLS participants to have access to the same listings and not necessarily have to go fish through, ‘What Facebook group am I supposed to join to get these under-the-radar listings?’ “

But there are rules… And there is reality.

With tight inventory and rising concerns about privacy, demand for off-market transactions simply is not going away. Especially when it comes to luxury properties listed on places like Austin Luxury Network.

Now savvy buyers want to check the pocket listings. They’ve read articles on how to head off competition with off-market homes. Or they’ve had their hearts broken too many times by losing out on too many properties.

Also, buyer wish lists are becoming more and more specific based on lifestyle changes, says Gray Adkins, Realtor, GRI, with Waterloo Realty. “As a buyer, if you’re looking for something really specific, you’re just waiting. You’re sitting on your hands checking MLS every morning wondering if it’s going to get listed. We’re only seeing a handful of things getting listed in each market area per week, so it can be a long, drawn out process.”

For sellers, the pandemic has added a new twist. Many want to avoid the showing frenzy’s disruption to their schedules. They’re working from home and helping their kids with virtual school, and the idea of COVID-status-unknown strangers walking through their house is not appealing.

Still, what might slow the use of pocket listings in Austin could come from the seller side rather than policy.

“It’s not really the best route for the seller unless that’s really what they want to do for personal reasons, because the market is so excited about every new listing that comes up, and that’s what tends to drive things into multiple offers,” Uliassi says. “So I’d say that finding off-market properties now is harder and harder.”

That tight inventory means Austin agents are working harder and harder just to find properties. Prospecting agents are calling, texting, emailing, mailing and even old-fashioned door knocking. Some are using companies offering “predictive analytics” to identify owners who are more likely to sell fairly soon.

They’re also looking at sources outside of MLS. “There are companies that are trying to compete with Zillow and MLS and have their own private listings,” Adkins says, as well as iBuyer programs uncovering homes. But there’s still no substitute for developing hyper-local expertise, keeping your ear to the ground and networking.

“If you’ve been in the business in Austin long enough – everybody knows everybody, and you can get a lot of information just by making a few phone calls,” Adkins says. “Word gets around, especially if you want it to.”

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Real Estate Brokerage

Customer satisfaction feedback comes best from your own service

(BROKERAGE) How you collect feedback can determine whether your service actually improves or not. #science

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Woman looking at laptop reading customer satisfaction surveys.

Every significant endeavor utilizes measurements and scorekeeping to record activities and progress. The most trivial of human pursuits often involves record keeping and statistical analysis. While the sales and production side of real estate services are measured in-depth, the service and customer satisfaction side of the business enjoys less measurement, scorekeeping, and analysis than one might find associated with the performance of a neighborhood Little League team.

What does this truly say then about the importance many brokers, owners or managers place on service delivery, customer satisfaction, consistency, and service performance?

It’s true that a few organizations do attempt to measure service performance by means of a customer satisfaction survey. Most of these programs are produced and administered internally. The surveys are sent under the company banner and the company tabulates the results.

First, when a customer is asked directly by the professional or the company for performance/satisfaction feedback, that feedback is always more positive than what is obtained by an independent, third-party asking the same questions.

This is known as the halo effect. Consumers are more diplomatic in their response to the person or company that provided the service.

Second, internal service/satisfaction assessment programs typically develop standards and objectives to validate the belief that good service is already being delivered. Thus this positively biased feedback data suits the objectives of the internal program just fine.

It’s just that measurement of those areas of service performance that sellers and buyers feel are important is not taking place.

For those more serious about customer service satisfaction and service performance assessment, there is recognition that the halo effect lessens the value of the data for internal use, and that keeping score of one’s own results has less credibility externally.

Instead, they seek the objectivity and credibility that third party validation of service assessment can provide.

Ironically, even without expert resources and objectivity the attention that measurement brings to the organization will effect positive results and performance improvement. This phenomenon is known as the Hawthorne effect.

The effect was first noticed in the Hawthorne plant of Western Electric. Production increased not as a consequence of actual changes in working conditions introduced by the plant’s management, but because management demonstrated interest in such improvements.

Unfortunately, this phase of initial improvement is not sustainable. Sustaining improvement requires more than measurement and leadership interest. Action steps that result in the actual improvement of the situation must follow collection of data.

Measuring service results and satisfaction in the real estate organization is an important first step. It will certainly gain the attention of the organization and send a serious signal.

Sustaining organizational interest and performance improvement requires more.

It requires systematic and timely feedback, objectivity, systems and service delivery processes, coaching and recognition/awards. But it really all does start by keeping score.

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Real Estate Brokerage

7 red flags that could scare off potential home buyers

(BROKERAGE) While houses are selling quickly right now, there are some things that will almost definitely turn a home buyer off.

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Open home and kitchen that home buyers will be considering.

The process of buying a home is incredibly overwhelming – as is the process of selling a house. There are so many aspects that potential home buyers are investigating when they enter a spot that’s for sale.

Without realizing it, many sellers can be hurting their chances of selling by overlooking simple things. The Ascent recently determined seven things that scare away potential buyers. Let’s dive in.

We all know the market is hot right now and houses are selling like crazy, but there are certain things that just cannot be ignored.

  1. Listing an unrealistic price: Be realistic about what your house is worth and don’t be misleading. People can easily search the worth of the houses around yours and do some digging to find out if what you’re listing is representative of what the house is worth.
  2. Skipping the deep clean: This is never a good idea – especially this year. The cleanliness of your house is akin in the buyer’s mind to the overall upkeep and maintenance of the house. They assume that if you don’t clean, you don’t care.
  3. Personalization: Since you’re moving, try and pack up some of your family photos and leave up less “personal” items (or color choices) to better help the potential buyer envision themselves living there.
  4. Expecting payment for features that are high maintenance: Things like pools and hot tubs don’t always return their value. Many home buyers aren’t interested in keeping up with that maintenance and it’s unreasonable to charge them for the assumption that they’ll keep up with it.
  5. Believing “It’s okay if this doesn’t work”: If your shower head is broken, the A/C is messed up, or a ceiling is cracked, you should do all you can to replace or repair it before listing your house. If you can’t, don’t expect anyone to pay the full listing price.
  6. Being nose-blind: Like those Febreeze commercials tell us, it’s common that we go nose-blind to our surroundings simply because we’re so used to them (i.e. a smoker doesn’t notice their house or clothes smell like smoke). Go back and check off deep cleaning, and then ask someone you really trust to come in and tell you how the house smells to an outsider. Trust me, this will be one of the first things a buyer notices.
  7. Leaving pets home during showings: Due to the unpredictability with strangers – or the potential allergies the strangers may have – it’s best to make arrangements for your pets to be elsewhere during showings.

At the end of the day, you have to look at your house from an outsider’s perspective. Getting feedback and opinions from friends and family can help this process.

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