In what could be the most far-reaching antitrust lawsuit for the real estate market in decades, the National Association of Realtors and four of the largest realty companies have been accused of a conspiracy to systematically overcharge home sellers by forcing them to pay commissions to the agents who represent the buyers of their homes.
The class-action suit, filed in federal district court in Chicago, focuses on a rule it says has been imposed by the NAR. The rule requires brokers who list sellers’ properties on local multiple listing services to include a “non-negotiable offer” of compensation to buyer agents. That is, once a home seller agrees in a listing to a specific split of the commission, buyers cannot later negotiate their agents’ split to a lower rate. That requirement, the suit alleges, “saddle(s) home sellers with a cost that would be borne by the buyer in a competitive market,” where buyers pay directly for the services rendered by their agents.
In overseas markets where there is no such mandatory compensation rule for buyer agents, total commission costs tend to be lower — averaging 1 percent to 3 percent in the United Kingdom, for example — versus the 5 percent to 6 percent commonplace here. The suit alleges that if buyers in the U.S. could negotiate fees directly with the agents they choose to represent them, fees would be more competitive and lower. Today many American buyers are unaware of their agent’s commission split.
Sellers typically know the percentage because they agree to it in the listing contract. But they may wonder: Why am I required to pay the fee of the buyer’s agent, who may be negotiating against my interests in the transaction? Also, at a time when buyers often search for and find the house they want to buy online, shouldn’t compensation for a buyer’s agents be decreasing, rather than stuck in the 2.5 percent to 3 percent range?
