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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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court justice

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

Housing trends continue to surprise everyone during pandemic

(BROKERAGE) Despite whispers, then shouts, to the contrary, the 2020 pandemic did not drive droves of people seeking housing out to the suburbs.

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Apartments and other urban housing doing surprisingly well during the pandemic.

Some things are counterintuitive. People think something’s going to happen a specific way, then they start making predictions, in-person and all over social media. The next thing you know, people start accepting it as truth.

One problem with this rumor mill, though, is that unproven narratives often turn out to be false, as is the case with the COVID-19 housing market narrative suggesting that the suburban housing market is booming, because people are desperate to escape the more densely populated, virus-laden areas.

Zillow’s recent housing report shows the 2020 housing trends through June of this year. The data shows that housing sales are proportionally similar to recent years in both urban and suburban areas. Both areas are strong seller’s markets at the moment, in fact.

The Zillow report also highlighted some comparative analysis between the two markets, noting among other things,

“…suburban markets and urban markets have seen similar changes in activity in recent months: About the same share of homes selling above their list price, similar changes in the typical time homes spend on the market before an offer is accepted, and recent improvements in newly pending sales have been about the same across each region type.”

Austin Realtor, Jordan Wade, with Luisa Mauro Real Estate, confirmed that this report rings true in the central Texas market.

“Our urban sales for 2020 are proportionately similar to years past. When the initial lockdowns went into effect earlier this year, I thought it would negatively impact the overall market with reduced sales, but that’s just not the case. We have clients regularly contacting us looking to purchase in central Austin as well as the suburbs. Both urban and suburban markets are going strong.”

The Zillow report delves deeper into the housing market specifics. While overall, the market demands in urban and suburban areas stayed consistent with last year’s percentages, some smaller trends in 2020 appear to be a continuation of 2019 buying trends. Among those continuing trends, for-sale homes in suburban areas receive about three times as much traffic as downtown listings, yet interest in single-family homes has stayed about the same as last year, too.

Markets in the major metro areas, such as New York and San Francisco, are the exceptions. Each of these historically desirable market areas have seen drops in home values (4.2% and 4.9%, respectively), with houses staying on the market up to two months longer than previously, and more new listings for sale in urban areas.

However, this is not true of other major cities: Miami, Los Angeles, Seattle, and Washington, D.C. It’s worth keeping an eye on these trends in upcoming months.

As Wade concludes, “We’re keeping our eye to the future as we learn about long-term effects of the pandemic, with more people working from home. That may eventually mean people will be looking for more square footage than a downtown condo can provide. However, we’re not seeing that yet.”

If we’re counting the lessons that 2020 is teaching us, perhaps we can include that things can change quickly, and things are not always what they seem. It makes sense to slow down, study the data, and reassess our assumptions. Things still may change, of course. They always do, after all, though not always how we predict they will.

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Real Estate Brokerage

The impact of the pandemic on your homebuyer clients

(BROKERAGE) While the pandemic has impacted many changes, you can reassure your clients that the homebuyer housing market is doing surprisingly well.

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For sale house reflects homebuyer growth.

This year, a great many things have been impacted by the pandemic: Company closures, setbacks, etc. The one thing that may actually be surviving well is the housing market. A news release put out by Down Payment Resource stated that 81% of homeownership programs have funds available for the eligible homebuyer. This organization assesses the market around the country and reports on the conditions it finds.

While they have noticed a small drop in those available programs, most of those dips turned out to be temporary and focused at the city and county levels. However, at the state level, these programs have remained open and have not needed to pause business during the pandemic. This has been contributed to a great deal of uncertainty about the world’s condition. This uncertainty does not seem to have affected the homebuyer market, though. Housing finance agencies have reported that they are doing as much or more business than they were at this time last year. The report recorded that, starting this past August, less than 2% of the DPAs had temporarily paused their programs due to the pandemic.

When analyzing the forbearance trends this year, DPA is reporting that the small increase at the beginning was just caution from consumers. Since then, they have slowed down and reports from the summer are showing an increase for the 8th week straight. The only dissenting comments are coming from CoreLogic, who states that delinquency rates are starting to rise.

The HPI reports an increase in the share of down payment and closing cost assistance programs. Upon analysis, all the numbers appear in the majority. The down payment or closing cost assistants’ programs come in at 78%. The only decrease they have recorded is in the first-time mortgages and the programs for Mortgage Credit Certificates (MCCs).

Overall, things are looking up for the market, at least by the numbers. However, you’ll still probably be facing some concerns from your clients around the volatile nature of the pandemic. This changing world is a scary place, but optimism remains.

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Real Estate Brokerage

Don’t settle for mediocrity: How to be a better leader

(BROKERAGE NEWS) There tends to be two camps of leaders, those who lead from strength and those from weakness. But who says you can’t do both?

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Leader in a meeting

A lot of leadership literature has become “strength’s focused” – using inventories like StrengthsFinder (developed by Gallup). The logic in many ways, is sound. Capitalizing on your strengths as a leader and those of your team is significantly more effective than attempts to cover perceived flaws or weaknesses.

The business world has been cited for being too focused on weaknesses (and now parents are too). This a natural inclination for people. For leaders however, we should be bringing our strengths (and the strengths of our teams) to work and making “it” happen.

However, an over focus on strengths isn’t without its own challenges. Tony Schwartz writes for Harvard Business Review, a “well-rounded leader” has a greater opportunity to be more effective. As we seek to leverage our “strengths” let us not forget the complexity of our skill set and how those negatives we see about ourselves can become assets – resources – that we use to manage ourselves and our teams.

Metaphors are common in leadership articles, so I won’t break tradition.

Much like in physical exercise, poor form often causes the overuse of a muscle versus a group of muscles. Poor leadership form, while doing the lifting, leads to an overuse or over-reliance on what is good and comfortable for us.

A pragmatic leader may find themselves unable to make dynamic change move forward. Today’s leaders have to deal with a more complex environment in terms of technology, skills, and demographics. One style of leading will simply not be enough.

The big lesson here is to workout things you don’t think are your best strengths. What are ways you can take those weaknesses and utilize them? How do your rebranded weaknesses make you a good leader for a project or a team? Create opportunities to use your “positive opposites” – those weaknesses that you have rebranded.

PRO TIP: Find a mentor, find a coach, or keep reading about leadership.

You may never be able to develop those skills as strong as your primary, but you will have more leadership muscle to work with. You’ll be delivering a better leader to serve, build, and develop yourself or the organization.

Schwartz discusses the role of choices. We make a lot of choices as leaders – resources, people, what risks, what resources, what costs. When we make those choices working with clients or employees we are always using our mental tool kits.

It doesn’t hurt us to have more tools, most of the time, to allow us to handle situations.

SIDEBAR: It is important to recognize that we only have a limited amount of time. You’re still going to benefit more from developing your strengths – but don’t forget to work out those rebranded weaknesses (the triceps of leadership!). I love an 80/20 perspective – spend 80% of your learning time focused on building up those strengths, spend the other 20% on flexing those rebranded weakness.

A well-balanced leader is not a one-trick pony – they are leaders who can take an organization through many life cycles. If you seek to be some kind of leader, take some time to appreciate your own mix of strengths and weaknesses, and the unique qualities that you bring to a complex world of complex organizations.

Leadership is a whole person endeavor, and don’t skip those weaknesses (just like leg day!).

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