Name: How the Real-Estate Fees Verdict Will Affect Home Buyers, Sellers
Uploaded: 2023-11-07T22:05:00Z
Duration: 6 min 16 s
Description: The recent verdict against the National Association of Realtors and large residential brokerages is likely to change the amount of commissions paid by home buyers and sellers, as well as how they are paid out. WSJ's Laura Kusisto joins J.R. Whalen to discuss. Photo: Tamir Kalifa For The Wall Street Journal

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The recent verdict against the National Association of Realtors and large residential brokerages is likely to change the amount of commissions paid by home buyers and sellers, as well as how they are paid out. WSJ's Laura Kusisto joins J.R. Whalen to discuss. Photo: Tamir Kalifa For The Wall Street Journal

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How the Real-Estate Fees Verdict Will Affect Home Buyers, Sellers

J.R.: Here's "Your Money Briefing" for Tuesday, November 7th. I'm J.R. Whalen for the Wall Street Journal. A jury's decision against the National Association of Realtors and large residential brokerages could mean changes in how much home buyers and sellers pay in commissions and fees. Wall Street Journal National Legal Affairs reporter Laura Kusisto joins me. So Laura, refresh us for a moment. Tell us about this case and the recent verdict.

Laura: It's been building for a number of years and this was a case brought by home sellers in a few Midwestern states against the National Association of Realtors and some national brokerages. And the essence of this case is that the current system for commissions, one in which the seller's agent pays the buyer's agent's commission is an antitrust violation. It amounts to a collusion, a conspiracy between real estate agents around the country to keep fees high and to hurt consumers.

J.R.: Now the NAR says it plans to appeal this decision, but under the current system, when a home is sold, what's the cash flow in terms of fees and commissions paid to brokers?

Laura: So the essence of the way that the system works is if I'm listing my home on a multiple listing service, which is the way the vast majority of people advertise their homes, market their homes, if I'm listing my home on most of these listing services, then I have to advertise upfront. This is the commission that I sort of as the seller am going to, in effect, pay to the buyer's agent. Essentially, the money flows from the seller to the buyer's agent, and the buyer never actually has to write a check to their own agent.

J.R.: How is that likely to change?

Laura: That is, of course, well, the $1.8 billion question as they say, right? This is the big question, how is this going to change? And we don't really know yet. We're waiting to see what a judge might order. So the jury really just found that NAR had violated antitrust law. They kind of determined the size of what the damages that they think are owed, but they didn't get into the sort of nitty gritty of how could these rules actually change. I mean, so we're waiting to see how a judge might approach that, but the essence of what we're imagining will happen is that there's likely to be some kind of what we call decoupling of the seller's and the buyer's agent's commission, so that in some way the seller is no longer going to, as a matter of course, offer to pay the buyer's agent's commission upfront. And we could see that play out in a number of different ways, but that's the essence of what we imagine.

J.R.: But if a seller can no longer pay a buyer's agent, what kind of position does that put the buyer in?

Laura: This has been really at the crux of NAR's defense, certainly from a policy standpoint. They say this is not consumer-friendly. This means that essentially you have buyers who are already having to put up money for a down payment who aren't about to sell their home and get the proceeds from that, you're pushing this cost onto them upfront at the beginning of the transaction when they have the least money to play with. So that's sort of the argument. We have consumer advocate types who've been looking at this issue and have proposed sort of different solutions for how we might be able to deal with that. And so one that I'd say is the most popular is this would be sort of negotiated as part of the transaction in the way that sellers will sometimes cover closing costs. And so the buyer would say to the seller, "Hey, like as part of this deal, I would like you to cover the cost of what I've agreed to pay my agent." And that's probably the most popular proposal we see floating out there.

J.R.: What would this look like in this current housing market we have where there is such low inventory?

Laura: In a really hot housing market, or even a market like now where inventory is just extremely tight, the seller's gonna have the upper hand. They're gonna have a lot of negotiating power and they may not feel like they really want to make that concession and cover the commission for the buyer.

J.R.: And just to be clear, there's potentially a lot of money involved here, but does this have anything to do with mortgage rates that we see are approaching 8%?

Laura: The reason why this is resonating so strongly with people around the country is because of how high home prices are and really how poor affordability is right now as a combination of home prices and mortgage rates. The kind of resonant message for consumers is we could make it a little bit cheaper, a little bit more affordable for you to buy a home. Whether that's how it plays out in this sort of idealistic way, I don't know. But I think that's really where this issue is getting people's hearts.

J.R.: How could this judgment change the business model for the crop of real estate startups that we've seen that often promote lower commissions?

There are different views about why this has happened, but what I can tell you is that I covered housing for five years. I've been continuing to follow these cases as a legal reporter and sort of my whole time covering this issue, almost every startup that I've seen has failed. Any startup that's come in trying to offer lower fees, particularly trying to offer lower fees to buyer's agents has gone down in flames. The question would be, if the rules change, could we see a little bit more innovation in this space where we really just haven't seen technology upend things in the way that it has in some other places?

J.R.: And there are several other similar lawsuits brewing on the horizon. What are they centered on?

We have another lawsuit that's been years in the making that involves 20 markets around the country. And really you just think about it as this lawsuit that we've just got a verdict on, on steroids. If the damages in this were 1.8 billion, which could be trebled to 5 billion, that lawsuit is several times larger. We're talking about damages in potentially the $40 billion range according to some estimates. You know, you just imagine that whatever this lawsuit is doing in terms of shaking up the industry, that will do it many times over. And then what we've basically seen since then is a copycat national lawsuit all across the country, which again, could be even bigger in scale if that ends up going forward. The real kind of key takeaway is that when you get a verdict of this size, a $1.8 billion number, plaintiff's attorneys sit up and take notice. And you know, as one analyst said to me, "It's really just, at this point, a race to the courthouse."

J.R.: That's Wall Street Journal reporter Laura Kusisto. And that's it for "Your Money Briefing." For more personal finance stories, go to our website, wsj.com. I'm J.R. Whalen for the Wall Street Journal. Thanks for listening.

WSJ's Your Money Briefing podcast is your personal-finance and career checklist. Finance reporters and experts break down complicated money questions every weekday to help you make better decisions about managing your money. 

How the Real-Estate Fees Verdict Will Affect Home Buyers, Sellers

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