Q. I have heard that the NAR settlement received preliminary approval and the opt-in period has begun. What does it mean to be covered by the settlement and do I need to do anything as a member of MAR?

A. Most members will not have to do anything to be covered by the terms of the settlement, so long as you are a REALTOR® member on the date of the class notice, which is expected to be August 17, 2024.

The agreement is meant to create some finality to these issues and seeks to  release NAR, over one million NAR members, all state and local REALTOR® associations, all association-owned MLSs, and all brokerages with an NAR member as principal (at the time of the Class notice) whose residential transaction volume in 2022 was $2 billion or below, from liability for the types of claims brought in these cases on behalf of home sellers related to broker commissions.

The only parties that need to take steps to opt in to the proposed settlement agreement are REALTOR® owned MLSs, non-REALTOR® owned MLSs, and brokerages with a residential transaction volume that exceeded $2 billion in 2022. These groups must fill out the corresponding appendix by June 18, 2024 to opt in to the settlement agreement.

For clarification, individual members and all brokerages with an NAR member as principal (at the time of the Class Notice, anticipated August 17, 2024) whose residential transaction volume in 2022 was $2 billion or below are released from liability in the proposed settlement agreement, and no further affirmative steps are required.

Please visit facts.realtor for additional updates and do note that you might be covered with additional specificity under other corporate settlements (i.e.: Anywhere, RE/MAX, Keller Williams, Compass, Homeservices, Douglas Elliman, etc.)

Q. Are offers of compensation going away?

It is unlikely that offers of compensation go away. In fact, the proposed settlement still allows for offers of compensation to be made between brokerages and only prohibits MLSs from including, facilitating and enforcing offers of compensation through the MLS or their data feeds. Offers of compensation can continue to be an option consumers can pursue off-MLS through negotiation and consultation with their real estate professionals.

MAR recently released two forms to help navigate the changing landscape. The first is form #311, Cooperating Compensation Agreement, which is an agreement between brokerages to offer and accept cooperating compensation. The other form is Form #310, Seller Agreement to Compensate Cooperating Broker Addendum, which can be used by buyers to request buyer broker compensation as a term of their offer to purchase.

Q:        What type of agreement do I have to have with a buyer after these proposed practice changes go into effect? What about practicing as a facilitator, can I do that?

A:  Central to these practice changes is the duty of the real estate professional to determine, in consultation and negotiation with consumers and clients that they seek to work with and represent, what the relationship is, what the scope of services are and for what cost. Transparency and consent being central tenets.

The practice changes requiring written agreements with buyers only applies to MLS participants “working with” buyers and is triggered by “touring a home.” NAR explains that “working with” language is intended to distinguish MLS participants who provide brokerage services to a buyer – such as identifying potential properties, arranging for a tour, negotiating, presenting offers or other services – from those MLS participants who simply talk to a buyer hoping to earn their business for example at an open house or when they provide access to the home they have listed for the seller.

Importantly, this clarifies a few things:

1. There is no requirement to take on a particular relationship type, meaning that agency, non-agency, subagent, transactional, customer, facilitation arrangements all still exist;
2. There is no definitive term or particular services required and compensation can be listed in many variable ways;
3. You do not have to represent someone who seeks to tour a home you have listed for your seller client or who wants to talk with you at an open house and you do not need any form of an agreement with them at that point;
4. There is no prohibition on non-agency relationships, meaning specifically, if you seek to be a facilitator for a pair of consumers that would absolutely be a permissible choice among the contracting parties.

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Services provided through the Massachusetts Association of REALTORS® is intended for informational purposes and does not constitute legal advice, nor does it establish an attorney-client relationship. The Massachusetts Association of REALTORS®, by providing this service, assumes no actual or implied responsibility for any improper use of responses to questions through this service.  The Massachusetts Association of REALTORS® will not be legally responsible for any potential misrepresentations or errors made by providing this service. For more information regarding these topics authorized callers should contact the MAR legal hotline at 800-370-5342 or e-mail at legalhotline@marealtor.com.