Settlement Update by Sandy Carroll

I just wanted to provide everybody a quick update on the settlement as we move towards our August 17 deadline for compliance in making required practice changes. I know that some agents have asked about news articles covering a judge’s ruling to delay the settlement, but please know that is NOT speaking about this NAR lawsuit settlement, but rather a delay in a Massachusetts-based class action suit against MLS PIN and certain Massachusetts brokers in the Eastern part of the state. They had reached a settlement prior to the national situation, but that judge is waiting to see what the rest of the country will do in the national settlement before finalizing. For us that means business as usual, moving towards the settlement as planned.

  • COMPENSATION: On or before August 17th, offers of compensation will be prohibited in the MLS. All compensation fields will be removed entirely and new rules will prohibit using any field in the MLS to discuss or share compensation.  Remember that offers of compensation will continue to be an option consumers can pursue off-MLS through negotiation and consultation with real estate professionals.  Broker or seller payment of buyer side compensation is still allowed through negotiation as long as it’s done off the MLS.  Additionally, rules will be created that prohibit you from using our MLS data to create a system of offers outside of the MLS.


  • BUYER AGREEMENTS:  REALTORS must enter into a written agreement before touring a home. We do encourage all members to start to educate, discuss and use buyer agreements as soon as your office policy dictates prior to August 17th, but no later than August 17th.  You’re welcome to use our forms now, wait a few weeks until the final revised version is available, use MAR forms or use your own.  We do not dictate terms of buyer agreements, but NAR has created resources to assist with implementation of the settlement terms—such as tips on clarity and emphasizing consumer choice—including “Written Buyer Agreements 101” resource, available here.


  • CONTRACT UPDATES:  There are been many twists and turns as we navigate the rules of the settlement and how it will impact our contracts and our way of doing business. There have been several revisions of our contracts and we are constantly assessing local, state and national legal issues cropping up everywhere. For example, Department of Justice recently challenged California’s proposed contracts and we regrouped and made sure that it concerns they had were addressed in our version. We are part of the state contracts and forms committee, and have been working with our local and hired a national attorney to assist in not only MLS compliance, but also Broker best practices to help you navigate these waters.  We participate in state and national calls with our attorneys and read, read, read to make sure we are up-to-date on emerging issues.

The following Berkshire documents will be updated;

    • Exclusive Right to Buy (Renamed Exclusive Buyer / Broker Representation Contract)
    • Exclusive Right to Sell (Renamed Exclusive Seller / Broker Representation Contract)
    • Purchase and Sale Agreement
    • Compensation Addendum
    • Disclosure notification for existing agreements
    • Uniform commission statement

The contracts are really shaping up to make the implementation as simple as possible.  We have revised several times to ensure that they are clear and concise for consumer understanding.  Likewise, MAR is updating the MAR forms as well.

    • Develop a system or method of communicating compensation offers from and to listing brokers on behalf of their seller clients.
    • Learn the new language in the contracts and your broker’s office policy on negotiations, terms and oversight.
    • Present your existing seller and buyer clients a disclosure notification (to be released mid-July) of key settlement terms so they don’t have to execute a new document.
      • Disclose to prospective sellers that broker compensation is not set by law and is fully negotiable;
      • Disclose in writing to sellers and obtain the seller’s authority for any payments or offer of payment that the listing Participant or seller will make to another broker
    • Make sure your broker and designee attends the July Zoom meeting to discuss the contract changes and Q&A. (date TBD)
    • Update your form template packages / loops / library to include the new forms and remove old forms.

We know this – doing business with the Berkshire MLS provides maximum liability protection for our brokerages and members.  Through our steadfast compliance with the settlement terms and the changes we are making, your REALTOR membership affords you with coverage as well, and ongoing coverage if you implement the practice changes as required.  There are many nuances to doing business in the state of Massachusetts given the different MLS structures so we can only speak to what we are doing here.

We will have a Broker zoom meeting cover the terms and use of forms, present actual language updates to our Rules and Regulations and answer any questions. The Board of Directors will be meeting July 17th for any last minute issues that might arise and we plan to host the broker zoom the following week when we release the contracts.

We are also continuing to offer to meet with individual brokers to talk about implementation and will be holding regional meetings again as we get closer.  Please be assured there is quite a bit of work going on behind-the-scenes and we are always working to put your best interest first!

My best, Sandy