Interesting question about the ramifications from the settlement: Let’s look to NAR FAQ # 39 to learn about compensation offers before and after August 17, 2024. Can buyers and buyer brokers rely on an offer of compensation that was on the MLS prior to the effective date of the MLS policy changes? NAR says:
- If the sales contract is executed before the MLS policy change, the buyer broker should be able to rely upon the offer of compensation even if closing occurs after the date of the policy change.
- But if a sales contract is not executed before the date the participant’s MLS implements the policy changes, the offer on the MLS will not be valid and buyers and buyer brokers may wish to protect themselves in writing with the listing broker or seller through a broker agreement or by including the offer of compensation in the sales contract.
Think about it this way – MLS rules currently state that the offer of compensation made in the MLS is a binding, unilateral offer made by the listing broker – and accepted by the cooperating broker at the time of an executed purchase agreement without any negotiations to the contrary. You have a contractual agreement if those two items exist and is arbitrable and enforceable for the procuring cause of sale. After the settlement, however, there will be no offer in the MLS to be accepted by the cooperation broker and therefore any past offer is not enforceable. You need to make new agreements in any transaction for buyer compensation from the listing broker, seller or buyer directly after that.
