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The hefty commissions home sellers pay to real estate agents may soon disappear

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The long tradition of home sellers footing the commissions of their buyers’ real estate agents may soon be a thing of the past.

A recent multibillion-dollar class-action verdict in Missouri found that the National Association of Realtors (NAR) along with some of the largest real estate brokerage firms in the country violated antitrust laws by conspiring to inflate and keep sales commissions artificially high. The NAR and other brokerages face a slew of new and older lawsuits that have similar claims.

Already, the suits have ushered in some changes to agreements sellers sign with their real estate agents that set commission-sharing parameters.

But depending on how the cases ultimately play out, they could dismantle the NAR’s stronghold over a system that has long been criticized for disadvantaging sellers and buyers by setting and maintaining broker commission rates between 5% and 6% of a home’s sale price. It would also have ripple effects on the overall housing market.

“The whole practice needs to stop,” Patrick Knie, one of the lawyers representing the plaintiffs in a case recently filed in South Carolina, told Yahoo Finance. “We just need to go back to being in a free market.”

AUSTIN, TEXAS - OCTOBER 16: A home available for sale is shown on October 16, 2023 in Austin, Texas. Home sales have slowed as the cost of borrowing has increased and the country continues seeing record-high mortgage rates. (Photo by Brandon Bell/Getty Images)AUSTIN, TEXAS - OCTOBER 16: A home available for sale is shown on October 16, 2023 in Austin, Texas. Home sales have slowed as the cost of borrowing has increased and the country continues seeing record-high mortgage rates. (Photo by Brandon Bell/Getty Images)
A home available for sale is shown on Oct. 16 in Austin, Texas. (Photo by Brandon Bell/Getty Images) (Brandon Bell via Getty Images)

The cases

The rumblings of this shakeup intensified on Oct. 31 when a unanimous eight-member jury concluded that since 2015, NAR and its broker co-defendants who belong to NAR’s professional organization caused home sellers $1.79 billion in damages.

NAR said it plans to appeal the verdict. However, similar class-action suits have followed in the last three weeks in Missouri, South Carolina, New York, Illinois, and Texas, adding to at least one older case in Illinois still awaiting trial.

At the heart of these lawsuits is the NAR’s rules that the plaintiffs’ lawyers argue effectively forced sellers to pay out commissions to buyers’ agents.

The NAR’s Multiple Listing Service (MLS), a database where 88% of sellers listed their homes this year, remains a primary tool to match home buyers and sellers. Brokers who list their clients’ properties in the database must also agree to share their commissions with other MLS participants.

That agreement, the plaintiffs in the Missouri case and others argue, artificially drives up home prices and deprives sellers, and in one case buyers, of profit.

“Just in our small state of South Carolina, the Keller Williams Group…had in 2022 basically $940 million in sales. And if you just take the 3% commission that they forced the seller to pay for buyer’s commission, which is the average that they forced on the seller, that’s $28 million plus in one year,” Knie said.

NAR, for its part, contends that their commission structure, which has been in place for over 100 years, benefits consumers.

The jury in Missouri disagreed. That verdict, which gives the judge presiding over the case latitude to impose triple or “treble” damages, could increase damages to $5 billion against NAR and its co-defendants.

In addition the Justice Department has reportedly considered legal intervention, too. In July 2021, the department stopped moving forward with a settlement with NAR after concluding it could prevent its ability to protect competition in the market, which “profoundly affects Americans’ financial well-being.” Since then the agency has filed an appeal to a judge’s ruling that prohibited it from reopening investigation into two NAR policies.

Changes already

The threat of the Missouri case’s outcome — plus the others still in the pipeline and the DOJ’s possible actions — has already had an impact on the NAR’s influence over home buying and selling.

Read more: How to buy a house in 2023

Ahead of the trial, the organization changed the wording of its participation agreement to remove the rule that required its seller brokers to share commissions. In its revised agreement, NAR’s mandatory buyer commissions are reduced to $0.

While the change may prevent future antitrust lawsuits that stem from commissions paid out under the new NAR agreement, it may not be enough to stop the flood of actions seeking to claw back already-paid broker fees.

“That is just window dressing, in our opinion,” Matthew Shealy, another lawyer representing the South Carolina plaintiffs, told Yahoo Finance. “We don’t think that that solves the problem…What buyer’s agent is going to take a buyer to that house?”

Prospective home buyer Jessica Doctoroff talks to her real estate agent Stephen Bremis (R) while viewing a condominium for sale in Somerville, Massachusetts April 2, 2009. Pending sales of existing U.S. homes rose modestly in February but the market is still weak in the face of continued declines in home values and a recession, according to the National Association of Realtors Pending Home Sales Index REUTERS/Brian Snyder (UNITED STATES)Prospective home buyer Jessica Doctoroff talks to her real estate agent Stephen Bremis (R) while viewing a condominium for sale in Somerville, Massachusetts April 2, 2009. Pending sales of existing U.S. homes rose modestly in February but the market is still weak in the face of continued declines in home values and a recession, according to the National Association of Realtors Pending Home Sales Index REUTERS/Brian Snyder (UNITED STATES)
Prospective homebuyer Jessica Doctoroff talks to her real estate agent Stephen Bremis while viewing a condominium for sale in Somerville, Mass., April 2, 2009. (REUTERS/Brian Snyder) (Brian Snyder / reuters)

On a local level, real estate associations have taken note, too.

For instance, the Real Estate Board of New York, or REBNY, announced that, beginning next year, seller’s agents can’t make an offer of compensation or directly compensate a buyer’s agent. Instead, any compensation to the buyer’s real estate agent from the seller must be negotiated and paid directly by the seller, according to the FAQ on the changes.

Similarly in California, the Realtors association there updated its real estate purchase agreement last year on how buyer’s agents are paid their commission.

The new purchase agreement called RPA includes a section called “Seller Payment to Buyer’s Broker,” which indicates a “buyer has entered into a written agreement to compensate [the] buyer’s broker.” It also cites that the seller has agreed to pay the obligation.

What’s to come on commissions?

Those recent changes fit in with how Nick Oliver, principal broker at Hauseit, believes the cases will transform the industry.

“Ultimately, it will just lead to more transparency in terms of how commission rates are negotiated with a seller and a listing agent, and how they’re actually presented in a listing agreement,” said Oliver, whose firm offers “a la carte” broker services that bridge NAR’s traditional commission-based sales model and the for-sale-by-owner model. These hybrid services allow sellers to buy only the listing services they need.

Another potential change is a complete block of NAR’s fee-sharing agreements.

“We think [the Missouri] decision increases the chances of a ban on commission sharing,” Jefferies equity analyst John Colantuoni wrote in a note to clients following the verdict.

But when that would happen remains to be seen. In a shareholder letter, Zillow said that due to appeals it could be years before the cases impact the real estate market. Still, at a minimum, Redfin CEO Glenn Kelman wrote a blog post that the uncertainty around the lawsuits could encourage clients to negotiate better terms to save money. Other experts agree.

“I think now would be your time to be more aggressive with the real estate listing agent and reduce that condition,” Kevin Fields, an associate professor of clinical finance and business economics, told Yahoo Finance.

Under the current housing landscape, Fields is also curious if buyers and sellers negotiate to “flat 4% across the board,” which would split 2% between the seller’s and buyer’s agent.

If that doesn’t work, Fields said the move could be towards “an hourly fee compensation instead of a commission structure with the high cost of home prices.”

What that means for the housing market

Punta Gorda, Florida, Coldwell Banker, real estate office, man looking at property listings and homes for sale . (Photo by: Jeffrey Greenberg/Universal Images Group via Getty Images)Punta Gorda, Florida, Coldwell Banker, real estate office, man looking at property listings and homes for sale . (Photo by: Jeffrey Greenberg/Universal Images Group via Getty Images)
A man looks at property listings and homes for sale in Florida. (Jeffrey Greenberg/Universal Images Group via Getty Images) (Jeff Greenberg via Getty Images)

And there’s the question of how either a total ban of commission-sharing or reduced commissions would affect the overall housing market.

In theory, that should push home prices lower, John Campbell, managing director of equity research at Stephens Inc., told Yahoo Finance.

“From an academic standpoint, it should,” Campbell said.

Fields agreed, noting that now the commission is “baked into most listing prices.”

“If it’s going to be a total 5% that that seller has to pay, well then they’re going to increase the purchase price of that home by 5% to offset the cost that they’re going to have to pay out for the commissions,” Fields said. “So theoretically, it should decrease the listing prices.”

That would hold true in a more normal housing market. But today’s market is so supply-starved that even the doubling of mortgage rates over the last year couldn’t permanently put a lid on home price increases. In fact, home values hit another high in August when mortgage rates reached a 22-year high.

As housing affordability grows worse, the legal challenges could motivate lenders to offer real estate commissions to be financed into a borrower’s mortgage that’s if the buyer is forced to pay their agent’s commission out of pocket.

Read more: Types of mortgage loans: Buying a house in 2023

“That will be a strong push to have lenders start allowing for those commissions to be included in mortgages,” Fields said. “The prospective buyer would need to come up with both a purchase price and that potential commission price, and then also pay for whatever cost of the transaction had been pushed to the buyer. It’s gonna be a significantly larger chunk to purchase.”

That, he said, would lead to “fewer home transactions in the United States.”

 

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Here are some facts about British Columbia’s housing market

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Housing affordability is a key issue in the provincial election campaign in British Columbia, particularly in major centres.

Here are some statistics about housing in B.C. from the Canada Mortgage and Housing Corporation’s 2024 Rental Market Report, issued in January, and the B.C. Real Estate Association’s August 2024 report.

Average residential home price in B.C.: $938,500

Average price in greater Vancouver (2024 year to date): $1,304,438

Average price in greater Victoria (2024 year to date): $979,103

Average price in the Okanagan (2024 year to date): $748,015

Average two-bedroom purpose-built rental in Vancouver: $2,181

Average two-bedroom purpose-built rental in Victoria: $1,839

Average two-bedroom purpose-built rental in Canada: $1,359

Rental vacancy rate in Vancouver: 0.9 per cent

How much more do new renters in Vancouver pay compared with renters who have occupied their home for at least a year: 27 per cent

This report by The Canadian Press was first published Oct. 17, 2024.

The Canadian Press. All rights reserved.

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B.C. voters face atmospheric river with heavy rain, high winds on election day

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VANCOUVER – Voters along the south coast of British Columbia who have not cast their ballots yet will have to contend with heavy rain and high winds from an incoming atmospheric river weather system on election day.

Environment Canada says the weather system will bring prolonged heavy rain to Metro Vancouver, the Sunshine Coast, Fraser Valley, Howe Sound, Whistler and Vancouver Island starting Friday.

The agency says strong winds with gusts up to 80 kilometres an hour will also develop on Saturday — the day thousands are expected to go to the polls across B.C. — in parts of Vancouver Island and Metro Vancouver.

Wednesday was the last day for advance voting, which started on Oct. 10.

More than 180,000 voters cast their votes Wednesday — the most ever on an advance voting day in B.C., beating the record set just days earlier on Oct. 10 of more than 170,000 votes.

Environment Canada says voters in the area of the atmospheric river can expect around 70 millimetres of precipitation generally and up to 100 millimetres along the coastal mountains, while parts of Vancouver Island could see as much as 200 millimetres of rainfall for the weekend.

An atmospheric river system in November 2021 created severe flooding and landslides that at one point severed most rail links between Vancouver’s port and the rest of Canada while inundating communities in the Fraser Valley and B.C. Interior.

This report by The Canadian Press was first published Oct. 17, 2024.

The Canadian Press. All rights reserved.

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No shortage when it comes to B.C. housing policies, as Eby, Rustad offer clear choice

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British Columbia voters face no shortage of policies when it comes to tackling the province’s housing woes in the run-up to Saturday’s election, with a clear choice for the next government’s approach.

David Eby’s New Democrats say the housing market on its own will not deliver the homes people need, while B.C. Conservative Leader John Rustad saysgovernment is part of the problem and B.C. needs to “unleash” the potential of the private sector.

But Andy Yan, director of the City Program at Simon Fraser University, said the “punchline” was that neither would have a hand in regulating interest rates, the “giant X-factor” in housing affordability.

“The one policy that controls it all just happens to be a policy that the province, whoever wins, has absolutely no control over,” said Yan, who made a name for himself scrutinizing B.C.’s chronic affordability problems.

Some metrics have shown those problems easing, with Eby pointing to what he said was a seven per cent drop in rent prices in Vancouver.

But Statistics Canada says 2021 census data shows that 25.5 per cent of B.C. households were paying at least 30 per cent of their income on shelter costs, the worst for any province or territory.

Yan said government had “access to a few levers” aimed at boosting housing affordability, and Eby has been pulling several.

Yet a host of other factors are at play, rates in particular, Yan said.

“This is what makes housing so frustrating, right? It takes time. It takes decades through which solutions and policies play out,” Yan said.

Rustad, meanwhile, is running on a “deregulation” platform.

He has pledged to scrap key NDP housing initiatives, including the speculation and vacancy tax, restrictions on short-term rentals,and legislation aimed at boosting small-scale density in single-family neighbourhoods.

Green Leader Sonia Furstenau, meanwhile, says “commodification” of housing by large investors is a major factor driving up costs, and her party would prioritize people most vulnerable in the housing market.

Yan said it was too soon to fully assess the impact of the NDP government’s housing measures, but there was a risk housing challenges could get worse if certain safeguards were removed, such as policies that preserve existing rental homes.

If interest rates were to drop, spurring a surge of redevelopment, Yan said the new homes with higher rents could wipe the older, cheaper units off the map.

“There is this element of change and redevelopment that needs to occur as a city grows, yet the loss of that stock is part of really, the ongoing challenges,” Yan said.

Given the external forces buffeting the housing market, Yan said the question before voters this month was more about “narrative” than numbers.

“Who do you believe will deliver a better tomorrow?”

Yan said the market has limits, and governments play an important role in providing safeguards for those most vulnerable.

The market “won’t by itself deal with their housing needs,” Yan said, especially given what he described as B.C.’s “30-year deficit of non-market housing.”

IS HOUSING THE ‘GOVERNMENT’S JOB’?

Craig Jones, associate director of the Housing Research Collaborative at the University of British Columbia, echoed Yan, saying people are in “housing distress” and in urgent need of help in the form of social or non-market housing.

“The amount of housing that it’s going to take through straight-up supply to arrive at affordability, it’s more than the system can actually produce,” he said.

Among the three leaders, Yan said it was Furstenau who had focused on the role of the “financialization” of housing, or large investors using housing for profit.

“It really squeezes renters,” he said of the trend. “It captures those units that would ordinarily become affordable and moves (them) into an investment product.”

The Greens’ platform includes a pledge to advocate for federal legislation banning the sale of residential units toreal estate investment trusts, known as REITs.

The party has also proposed a two per cent tax on homes valued at $3 million or higher, while committing $1.5 billion to build 26,000 non-market units each year.

Eby’s NDP government has enacted a suite of policies aimed at speeding up the development and availability of middle-income housing and affordable rentals.

They include the Rental Protection Fund, which Jones described as a “cutting-edge” policy. The $500-million fund enables non-profit organizations to purchase and manage existing rental buildings with the goal of preserving their affordability.

Another flagship NDP housing initiative, dubbed BC Builds, uses $2 billion in government financingto offer low-interest loans for the development of rental buildings on low-cost, underutilized land. Under the program, operators must offer at least 20 per cent of their units at 20 per cent below the market value.

Ravi Kahlon, the NDP candidate for Delta North who serves as Eby’s housing minister,said BC Builds was designed to navigate “huge headwinds” in housing development, including high interest rates, global inflation and the cost of land.

Boosting supply is one piece of the larger housing puzzle, Kahlon said in an interview before the start of the election campaign.

“We also need governments to invest and … come up with innovative programs to be able to get more affordability than the market can deliver,” he said.

The NDP is also pledging to help more middle-class, first-time buyers into the housing market with a plan to finance 40 per cent of the price on certain projects, with the money repayable as a loan and carrying an interest rate of 1.5 per cent. The government’s contribution would have to be repaid upon resale, plus 40 per cent of any increase in value.

The Canadian Press reached out several times requesting a housing-focused interview with Rustad or another Conservative representative, but received no followup.

At a press conference officially launching the Conservatives’ campaign, Rustad said Eby “seems to think that (housing) is government’s job.”

A key element of the Conservatives’ housing plans is a provincial tax exemption dubbed the “Rustad Rebate.” It would start in 2026 with residents able to deduct up to $1,500 per month for rent and mortgage costs, increasing to $3,000 in 2029.

Rustad also wants Ottawa to reintroduce a 1970s federal program that offered tax incentives to spur multi-unit residential building construction.

“It’s critical to bring that back and get the rental stock that we need built,” Rustad said of the so-called MURB program during the recent televised leaders’ debate.

Rustad also wants to axe B.C.’s speculation and vacancy tax, which Eby says has added 20,000 units to the long-term rental market, and repeal rules restricting short-term rentals on platforms such as Airbnb and Vrbo to an operator’s principal residence or one secondary suite.

“(First) of all it was foreigners, and then it was speculators, and then it was vacant properties, and then it was Airbnbs, instead of pointing at the real problem, which is government, and government is getting in the way,” Rustad said during the televised leaders’ debate.

Rustad has also promised to speed up approvals for rezoning and development applications, and to step in if a city fails to meet the six-month target.

Eby’s approach to clearing zoning and regulatory hurdles includes legislation passed last fall that requires municipalities with more than 5,000 residents to allow small-scale, multi-unit housing on lots previously zoned for single family homes.

The New Democrats have also recently announced a series of free, standardized building designs and a plan to fast-track prefabricated homes in the province.

A statement from B.C.’s Housing Ministry said more than 90 per cent of 188 local governments had adopted the New Democrats’ small-scale, multi-unit housing legislation as of last month, while 21 had received extensions allowing more time.

Rustad has pledged to repeal that law too, describing Eby’s approach as “authoritarian.”

The Greens are meanwhile pledging to spend $650 million in annual infrastructure funding for communities, increase subsidies for elderly renters, and bring in vacancy control measures to prevent landlords from drastically raising rents for new tenants.

Yan likened the Oct. 19 election to a “referendum about the course that David Eby has set” for housing, with Rustad “offering a completely different direction.”

Regardless of which party and leader emerges victorious, Yan said B.C.’s next government will be working against the clock, as well as cost pressures.

Yan said failing to deliver affordable homes for everyone, particularly people living on B.C. streets and young, working families, came at a cost to the whole province.

“It diminishes us as a society, but then also as an economy.”

This report by The Canadian Press was first published Oct. 17, 2024.

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