The $418 million commissions lawsuit that was settled last week with the National Association of Realtors (NAR) is certainly a big deal. The NAR is trying to sound positive, but all signs point to this outcome being meaningful for the industry. TD Cowen Insights is forecasting that commissions paid in the US each year could fall by some $25 to $50 billion (from a total of ~$100 billion). And this is the headline you'll see everywhere right now. But how might this actually happen?
As we've talked about before, the status quo commissions set up is a good one for agents:
Sellers are typically the party who pays 100% of the commissions
But sellers don’t pay until the agent sells and they have fresh cash
Money being deducted from proceeds (a “take rate”) is a lot less noticeable and has a lot less friction than cash you just have to pay out of pocket
Buyers kind of don’t pay -- or at least that's how they're supposed to feel
This is "good" because it perpetuates the existing model. If buyers feel like they're mostly not paying, they're just going to go to the marketplace with the most supply of homes. And that marketplace is the Multiple Listing Service (MLS). However, this marketplace also does things like tell buyer agents how much commission they will make as part of each deal. And the belief is that practices like this are anticompetitive.
So as part of the above settlement, the following new rules are expected to go into place by July 2024 in the US:
Seller agents will no longer be able to set compensation for buyer agents
All fields on MLS displaying broker compensation will need to be removed
Furthermore, agents will no longer even need to subscribe to an MLS in order to accept compensation
Buyers working with an agent will need to enter into their own buyer broker agreement and negotiate compensation separately
However, there's nothing stopping buyers and sellers from negotiating whatever commission structure they want; the idea is simply that it will be more transparent and negotiated by each participant
Why this is meaningful is that it decouples buyer agents and seller agents in a way that they aren't today. Instead of everything originating from the sell side, each side of the transaction is now going to -- theoretically at least -- negotiate what they believe is fair compensation for their representation. At the same time, there's no obligation to even subscribe to an MLS.
This leads us to, at least, two important things to think about:
What is fair compensation? Well, it should depend. If I'm a first-time buyer, I may want someone to walk me through the entire process. But if I've done it many times before, maybe I need very little. Or, if I'm an investor looking to renovate homes, maybe I want representation that is also an expert on construction. The point is that, in a truly open market, one should be able to find an agent and pay them based on the value that they're creating. And this is presumably why everyone is expecting commissions to fall precipitously.
If there's no obligation to even subscribe to an MLS, does this then open the door for new and more open listing platforms? Right now, I don't know how this will play out. I'd like to better understand more of the details around this settlement item and what it could mean for the landscape. But I do know that the way to spur the most amount of innovation would be to have the marketplace run on something like a blockchain, and then allow anyone to create their own listing platform on top of it. One day.
This will be fascinating to watch play out. And I'm sure it's only a matter of time before it spurs similar changes here in Canada. Expect further coverage of this topic on the blog.
Photo by Tom Rumble on Unsplash
Real estate commissions on homes in the US are typically between 5-6%. And it is usually split between the seller's agent and the buyer's agent (or it goes all to one agent in the case of dual-ended deals). It is also customary for this commission to be paid entirely by the seller (through the proceeds of their sale), though you could argue that buyers end up paying for it indirectly. All of this is generally true in Canada as well.
This is a good set up:
Sellers don't pay until they sell and have fresh cash
Money being deducted from proceeds (the "take rate") is a lot less noticeable and has a lot less friction than cash you just have to pay out
Buyers kind of don't pay
This last point is one of the most important features of how real estate commissions work. Because you have one side of the transaction that feels as if they're mostly not paying, it generally helps to perpetuate the status quo. If both sides had to directly fork out cash, you'd likely have a lot more people saying, "hey, why don't we consummate this transaction over here, on the side, and not pay these fees."
But it turns out that the US Department of Justice isn't happy about some of these policies and practices. More specifically, when the National Association of Realtors does things like this:
Prohibiting multiple listing services (“MLSs”) from disclosing to prospective buyers the amount of commission that the buyer broker will earn if the buyer purchases a home listed on the MLS (“NAR’s Commission Concealment Rules”);
Allowing buyer brokers to mislead buyers into thinking that buyer broker services are free (“NAR’s Free-Service Rule”);
Enabling buyer brokers to filter MLS listings based on the level of buyer broker commissions offered and to exclude homes with lower commissions from consideration by potential home buyers (“NAR’s Commission-Filter Rules and Practices”); and
Limiting access to lockboxes that provide licensed brokers physical access to a home that is for sale to only those real estate brokers who are members of a NAR-affiliated MLS (“NAR’s Lockbox Policy”).
In fact, these practices were found to be anti-competitive; they were arguably keeping commissions artificially high. So much so that a federal court recently awarded $1.8 billion in damages. It was also decided that no rule or practice should exist that:
Prohibits, discourages, or recommends against an MLS or MLS Participant publishing or displaying to consumers any MLS database field specifying the compensation offered to other MLS Participants;
Permits or requires MLS Participants, including buyer brokers, to represent or suggest that their services are free or available to a client at not cost to the client;
Permits or enables MLS Participants to filter, suppress, hide, or not display or distribute MLS listings based on the level of compensation offered to the buyer broker or the name of the brokerage or agent; or
Prohibits, discourages or recommends against the eligibility of any licensed real estate agent or broker, from accessing, with seller approval, the lockboxes of those properties listed on an MLS.
Some believe that this ruling -- which will create more competition -- could reduce the $100 billion or so of commissions paid each year (in the US) by as much as 30%. This is possible. I have no idea how this estimate was calculated. But it does make intuitive sense that commissions should come down. This ruling gets at the heart of what sustains the industry: one side of the marketplace needs to feel that they're, mostly, not really, paying.
The National Association of Realtors in the US has a "Community and Transportation Preference Survey" that it conducts usually every two years. Last year (2020), wasn't supposed to be a survey year, but given the pandemic, they decided to run it in June and see if people's preferences had changed at all during that time.
Last June feels like eons ago to me and I bet that if you asked people how they were feeling today it may be slightly different. Nonetheless, the survey asked 2,000 adults from the fifty-largest metro areas a bunch of questions about where and how they live and where and how they might want to live in the future.
The topline results can be found over here. But for a bit of context, 58% of respondents were people who lived in a single-family detached house; 26% of respondents were people who lived in a building with two or more apartments and condos; and the rest of the respondents were split across townhouses, rowhouses, mobile homes, trailers, and other. (I'm kind of curious about the 2% who answered with other.)
One of the questions that I thought might be interesting to this audience is this one here about housing preferences going forward:
The question asks the respondents to imagine that they are moving into another home. It then asks about priorities and, more specifically, about their preferred trade-off between amenities and walkability versus a large detached house with a big yard.
Overall the split in preferences has remained close to 50/50 over the last three surveys. But there appears to be a small uptick toward large homes and less amenities. I wouldn't be surprised if the pandemic contributed to this thinking last summer. But who knows if this will persist. At the same time, actions speak louder than words.
My response to the above question would be less space, greater walkability, and more amenities. I have no desire to live in a low-rise grade-related house, especially one that is disconnected from the city. I like urbanity. What about you?