New Agent Lawsuits Could Have Profound Effects

Dave:
Hey, everyone. Welcome to On The Market, I’m Dave Meyer. Joined today by Henry Washington to talk about Henry’s favorite topic in the entire world, antitrust law. How excited are you?

Henry:
Oh man, I woke up this morning thinking, “I can’t wait to dive into more antitrust law.” And here I am.

Dave:
I knew it. That’s why we called you for this one. But all jokes aside, we were actually talking about something that is super relevant to real estate investors, which is the way that real estate agents are paid through commissions.
I’m not sure if you all have heard about this, but there’s basically two major multi-billion dollar lawsuits out there, that are saying that the way that real estate agents are paid, which we’ll get to and talk about a lot throughout this episode is anticompetitive, and basically it needs to change.
And so we are bringing in an expert, James Rodriguez, who is a reporter for Insider to talk about these lawsuits and the potential implications for real estate sellers, obviously, for real estate agents, for buyers, for basically everyone in this industry because everyone is genuinely affected by the way that commissions are paid out currently.
So Henry, what should people be listening to, given your expertise on antitrust real estate law?

Henry:
Look, I’m excited for this show because there is still so much confusion around how commissions are paid, who commissions are paid to, why people pay certain people commissions. It took me a while in this industry to even understand how all that truly works. And so being able to talk to somebody who has a general understanding of it and then talking about, how it might change or could change or should change is super interesting to me because obviously this affects my everyday business.
And if it’s confusing to me, somebody who is in this business all day, every day, it’s got to be scary and confusing to people just entering the market, trying to buy a home or people selling their home. These are peoples, typically, it’s their only net worth. It’s their only true wealth that they’ve accumulated.
And so it’s got to be scary to just go into this market and not fully understand how you might or might not be impacted and could it cost you thousands of dollars or should you pay thousands of dollars? And so I’m super excited to dive into this topic and hopefully shed some light on both how agents are compensated and whether or not it should change or not.

Dave:
Yeah, absolutely. That’s a great way of putting it. I think for people like us who have been doing this a long time, it’s still confusing, don’t fully understand the implication. So super excited to speak with James today.
Also want to say, I was joking about Henry’s expertise in law. You probably know a couple things, but please don’t expect that anything Henry or I say, is any way informed by actual law. Please consult an attorney before you take any of our advice in this episode or any episode.
But for real, this is a great episode and if you do like it, we ask that you please share it with someone that you know, I mean, I think this is going to impact anyone who or could, I should say, it could impact anyone who is involved in this industry, whether it’s you know someone who’s selling a home, buying a home, or is a real estate agent. And if you like the show, please don’t forget to give us a review on either Apple or Spotify.
But that, let’s bring on James Rodriguez, who is a senior real estate reporter at Insider. James, thank you so much for joining us for On The Market. Let’s start by having you tell us a little bit about your position as a reporter at Insider, what you cover and how you got into covering the national housing market.

James:
Sure. And thanks for having me. So I am a senior reporter on Insider’s Discourse teams. So basically we focus on tackling big questions or ideas through analysis and feature pieces. And so for me, that means asking big questions about the housing market, whether that’s what are the challenges for first time home buyers right now or these lawsuits that we’ll be talking about, which could, as I mentioned in the story, could radically reshape how we buy and sell homes.
And I got my start in Denver, actually. I was originally a data reporter there. So basically any story that involved a lot of numbers I’d be on in some capacity, and there was just so much real estate development and real estate news going on there at the time. This was back in 2018, and so I kind of just naturally fell into a backup real estate reporter role, just working on extra stories that the full-time reporter didn’t have time to get to.
And then when that job opened up at the beginning of 2020, I took on the role of real estate reporter full-time, and kind of had a front row seat to the way that COVID just altered the landscape for real estate in Denver and then nationwide as well. And so then ended up moving to Insider and now focus on more of a nationwide housing market.

Dave:
We picked a very good time to get into the housing market. It’s very interesting time to be in media covering the space, at least for us at BiggerPockets, and on the show it has been.
It sounds like you have very qualified background, James, and you wrote an incredible article. I loved reading it, called The multi-billion dollar lawsuit that could radically reshape how we buy and sell homes forever. And that’s what Henry and I are so eager and interested to talk to you about today, is these lawsuits that could potentially change the way that real estate commissions are structured.
So let’s just start at the top. We do have a lot of real estate agents who listen to the show, so they probably know this, but for everyone else who maybe hasn’t worked with an agent before, can you just tell us a little bit about how agents are currently compensated and then we’ll go into some of the prospective changes?

James:
Sure. So on a very basic level, most real estate agents are independent contractors, so they rely on commissions to earn a living, and they’re affiliated with brokerages that provide mentorship and training. But the main feature that they provide is just the ability to hang their license to operate in the market. And so in exchange for that, typically the agents will provide them with a cut of their commissions.
And typically the commissions for a real estate deal will range between 5% and 6% in the US, and in most transactions that’s split between the listing agent who’s representing the seller, and the buyer’s agent. Usually it’s an even split, but there can be a lot of variation there. And that’s pretty much at a basic level how real estate agents make their money today.

Henry:
Yeah. What’s interesting is this article, well obviously the lawsuit is interesting in general, but I think there’s a misnomer in general in the real estate agent space about how agents get paid.
I think most people think that each agent is paid by the prospective person that they’re representing. I think everybody understands, “I’m going to pay 6%, the seller’s going to pay 6% and that three goes to the buyer and three goes to the seller.” But that’s not really how it works, is it? It’s that all 6% goes to one of the agents, who is then somehow responsible for paying the others.
Can you shed a little more light on what that truly looks like?

James:
Yeah. Absolutely. Because it’s really interesting serpentine path that I described in this story, which is basically, when the seller lists their home for sale, they’re working with the listing agent typically, and they say, “Look, I’ll pay you the listing agent 3%.” But they’re also agreeing to pay the buyer’s agent say 3% as well.
And so at closing, the buyer pays the seller usually with the help of a mortgage, and then the seller will pay their agent, that say 6% commission, and then the listing agent will actually split that commission with the buyer’s agent.
So even though the buyer is the one who’s kind of fronting all the money, the commissions then come out of the seller’s pocket. And actually up until a couple of years ago, buyer’s agents could actually tell their clients that their services were free, because of this model, because the seller pays out the listing agent who then splits that commission with the buyer’s agent.

Henry:
Yes, exactly. And so I knew this because we’re doing deals all the time. And I don’t know that a lot of people actually read through their contracts with their agents to understand that that’s what’s actually happening.
And so I think, you said it a little bit in the intro, but a lot of the times this can vary from market to market on what those actual percentages are, and those percentages could have an impact on how quickly or not quickly your home gets sold, because I know here even regionally here in Arkansas, so we’re split between two counties, right? We’ve got Washington County and Benton County. And in Benton County, each little niche market has its own general rules for how these agents deal with commissions.
And so in Benton and Washington County, it’s expected that a buyer and seller’s agent are both going to get 3%. I’m sorry, in Benton County. But in Washington County it’s typical to see that one agent is going to get, I think it’s 3.7%, and the other agent gets 2.3%, and that’s like…

Dave:
I’ve never heard of that.

Henry:
Could be considered normal for here, but that could have an impact on the amount of eyeballs that see your property. So I was wondering if you’re seeing that in other areas of the country or can explain how that might actually impact your home sale?

James:
Yeah. And I think a lot of that just boils down to just how local real estate is in general. I think we see so many different ways of operating around the country, and a lot of that can depend too on guidance from local realtor associations. They’re going to have different norms and different ways of organizing their members all under the National Association of Realtors umbrella of course, but everything can be so local.
And then of course, it also depends on the arrangements that the agents themselves have between themselves and their agents or the clients. So the buyer agent and their client may have an agreement that says, “No matter what the seller is offering, I would like to get two and a half percent.” And so even if the seller is offering 2%, then it might be upon the buyer to pay that extra half percent, or there are all kinds of agreements that a buyer or seller can make with their individual agent to agree on commission before any transaction’s done.

Dave:
Okay. So we have a basic framework of this. I guess it’s not basic. Somewhat confusing framework for how real estate agents get paid currently, but the news here is that there are two currently very large class action lawsuits pending.
One is called Sitzer, is that Sitzer? Versus NAR and the other is Moehrl versus NAR. Basically trying to challenge the way that real estate agents are compensated. What is, basically what are they challenging?

James:
Yeah. And one interesting little wrinkle about the Sitzer case too. It’s actually been renamed Burnett et al versus NAR et al, and then there’s Moehrl, which is the larger of the two cases, but I can kind of break down each of those.
So in the Burnett case, which was filed in Missouri, it’s the smaller of the two cases. It’s scheduled to go to trial in October of this year. Both these cases have been bubbling since 2019, but really starting to gain traction now, especially when both of them were given class action status. So each of these cases is representing a broad swath, of home sellers who are the plaintiffs who are basically arguing that they were forced to pay unfairly high commissions, and they’re suing the National Association of Realtors, as well as all of these large brokerages.
You think of RE/MAX, Keller Williams, Anywhere Real Estate, which includes Coldwell Banker and Century 21, and they’re saying that NAR and these large brokerages basically conspired to force sellers to pay these unjustly high commissions. And the way that they’re doing this is through the rules of the multiple listing service or the MLS. And basically, because of this requirement in the MLS that says, “When you list your home, you must promise to offer the buyer’s agent some sort of commission.”
Now, the NAR doesn’t specify what that commission needs to be, but as we see in practice, it typically ends up being between two and a half or 3%. And that rule, it’s the cooperative compensation rule, which is really at the heart of this lawsuit. That rule is really the reason why we have this strange way of paying out agents, where the buyer pays a seller who pays a listing agent, who then pays the buyer’s agent. That’s because of this rule, which is when you list a home, you’re promising that compensation.
And so these lawsuits basically contend that, because of this rule, these sellers don’t want their homes to go overlooked in the MLS. And so they feel that in order to entice buyer’s agents to show their clients the property, they need to promise a commission that’s in line with kind of the going rate. So they’re essentially forced to pay for this buyer’s agent service.
So I mentioned the Burnett case, which is scheduled to go to court, go to a trial in October this year with a backup date in February 2024. The damages in that case could total nearly $4 billion. And then you have the Moehrl case, which is the larger of the two cases. Damages in that case could actually total more than $40 billion. And that case includes a much wider group of home sellers. And there hasn’t been a trial date set. People that I talked to expect it to be sometime in 2024.
So really these cases are starting to gain a lot of traction. Both of them. A judge reviewed them and granted them both class action status, and so they’re moving forward and they could have these really profound effects for the ways in which we buy and sell homes. And I’m sure we’ll get into that, but that’s kind of the basic state of play right now.

Henry:
Okay. So for clarification’s sake, because it sounds like there’s a few things here. They’re sellers and if they’re saying, “I don’t want to pay for a buyer’s agent.” Or, “Is the rub that if my agent is taking a less than what’s considered fair commission, and this gets posted on the MLS where all of the prospective agents can see this, that I won’t get eyeballs on my property and it might take longer to sell.” What specifically are they concerned about and what’s driving this lawsuit?

James:
Yeah. The real issue here with the plaintiffs that the sellers are seeking to accomplish is a decoupling of the commissions. Basically, they’re arguing that if each side just pays their own agent separately, it doesn’t go through this process where the seller then pays the listing agent and so on, that there will be more transparency, more incentives for both sides to actually negotiate rather than accepting, “This is the way that things have always been done.” “This is the way that they’ll continue to be done.”
So this decoupling they say, would incentivize buyers to negotiate more for themselves and negotiate lower commissions with their buyer agent. And then for the listing agent, they wouldn’t have to then pay out the buyer’s agent at all, and they could focus on negotiating with their listing agent and getting what they feel is a fair commission there as well.

Dave:
And James, sorry if I’m not understanding this, but all this, what you’re saying makes sense. I’m tracking what you’re saying, but what about it is illegal? I get that there’s sort of this frustration here by sellers, but what is the law that they’re saying is being broken?

James:
They’re basically arguing that this is an anticompetitive practice, that this is discouraging competition because of, there’s also what they’re concerned about is this issue that you alluded to Henry of steering, which is basically they’re arguing that, because they are forced to offer compensation to the buyer’s agent.
They don’t want to offer less than the going rate because if they do, then buyer’s agents might be more inclined to just steer their client away from that property altogether that they’ll just say, “Look, I can get a better commission somewhere else. I’m just not going to even bother showing my client that property.”
So the issue is basically they feel like because they’re forced to pay the buyer’s agent, they’re being forced to kind of meet that going rate. And again, the NAR argues that commissions are always negotiable. They’re saying that basically if you wanted to offer the buyer’s agent $1 or 1 cent, technically, that would comply with the rules of the MLS.
Which again, these MLS there’s about 600 independent local databases where agents list properties, they’re governed by rules, they’re controlled by local realtor associations and governed by rules mandated by the National Association of Realtors, the NAR. So that’s why the plaintiffs are taking issue with the NAR because they’re handing down these rules that they feel are basically forcing them to have to pay this kind of going rate of two and a half or 3% to buyer stations.

Dave:
Henry, can I just ask you, have you ever paid anything other than 5.7 to 6% in your life?

James:
Absolutely not.

Dave:
It’s just what it is. I’m not saying that’s right or wrong, but I’ve never seen someone really successfully negotiate a different split in my life, at least.
Do you know, James, if that’s common, is that part of the lawsuit that are people refuting the idea that it’s negotiable with evidence?

James:
Well, that’s the thing here is we’ve seen, you can look at average commission rates in the US which have admittedly gone down slightly, it’s around 5% now, is that the average commission rate for real estate deals in the US. But it’s been pretty stubbornly high despite all of these innovations in the market.
You think of the ability to look for homes online, you think of new technologies and as well as an influx of agents over the past decade. You’ve had all of these real estate agents kind of chasing deals in the wake of the great recession, as we’ve seen home prices rise. And normally you’d expect that to result in more price competition to see in a competitive market, you’d expect to see maybe some type of, you expect to see commissions fall maybe, as a result of that more competition in the marketplace.
And you do have, I will say, some discount broker models out there that will work with you for say, a 1.5% commission rate or some sort of flat fee model. They do offer less service in some cases. I can’t speak broadly for every single one of them, but that model hasn’t gained traction in the way that I think when it was initially introduced, people thought it would. So that’s why we have seen commissions remain where they’ve typically been at despite all these changes.

Henry:
So it seems like a lot of the hangup is with the model of having to sell on the MLS, is it possible for homeowners to sell their home without using the MLS or are people forced to use this system?

James:
So the MLS is pretty much the best way to get the most eyeballs on your home to theoretically get the best price for your home. So when you look at last year, the NAR reported that roughly 87% of sellers used the MLS. So it’s still the most widely used method of selling a home, and that data from the MLS then filters to sites like Zillow and Redfin. And so that’s how you have online listings.
And if you’re a seller, you probably want access to the MLS. And the way that you get that access is through at dues paying member of the local realtor association, which operates that MLS. So about 97% of MLS are operated by a local realtor association. So one of the best arguments for working with a realtor actually is you get access to this MLS, and you get as many people looking at your home as possible.
There are ways to, you see for sale by owner, which is someone just kind of going out on their own and maybe advertising through other methods, Craigslist or even just hanging out flyers or just putting a for sale sign in their front yard. There are companies as well that offer flat fee MLS listings, which is basically you pay them a few hundred dollars.
They’ll get your property on the MLS and kind of call it a day from there, or you could again work with a discount brokerage that offers maybe fewer services, but we’ll get you on the MLS and get you some of those services that you need to get your home out there.

Dave:
So in the case that the plaintiffs win and there is some decoupling as you called it, what would this mean for how agents are paid and what do you think it means more broadly for the home buying industry?

James:
Yeah. It’s really interesting, because basically the way that it works right now, is the buyer is essentially able to off-load the payment for their agent, who they work with to the seller, of course, they’re usually financing their home purchase, and so they’re kind of able to bundle that into their mortgage, they pay for the house, and then their agent eventually gets paid out.
If they’re paying for their agent directly, the plaintiffs say, and an expert from the Consumer Federation of America who I talked to, basically you might see more buyers choosing to just kind of pay their agent on an hourly basis and just this is, “I’m paying you for this work, this service of help me find a house and maybe some negotiating in there.” But you won’t get a piece of the eventual price, which it brings up an interesting question of, if you’re a buyer working with an agent and you theoretically want to get a home for the best price, one person I talked to basically said, “Why are you paying? Why are you paying them a commission? Why are they getting commission that’s incentivizing them to basically get a higher price?” Which would mean a bigger commission for them. Why are they getting a commission in the first place?
So you might see more of that kind of paying a buyer agent hourly, but also on a more dramatic scale, you might just see fewer people using buyer’s agents altogether. If they’re forced to pay for a buyer’s agent out of their own pocket, you might see people not wanting do that. That could be a lot of money. If that’s a two and a half or 3% of a house, that’s tens of thousands of dollars in some cases.
And so you might see in other countries where the Netherlands or Australia or the UK where only five or 20%, between five and 20% of home buyers actually work with an agent compared to, you see much more buyers here in the US using agents. And as a result, you see total commissions in those countries far less than, than what we’re seeing in the US.
Two to 4% instead of this five to 6% that we’re used to. And if commissions were to fall to three or 4%, the Consumer Federation of America estimates that consumers could save 20 to $30 billion every year through smaller-

Dave:
Wow. Oh my god.

James:
… smaller commissions.
So you would have basically, fewer buyers may be using agents, using agents in a different way. We have this oversupply of agents right now, because so many people kind of dove into the industry, in the decade after the recession, but particularly during COVID when we saw prices skyrocketing and people were looking for that flexibility, looking for ways to get into the industry and capitalize on rising home prices. And so you’d see those agents kind of scrambling to get deals and kind of more of an emphasis on maybe working on the listing side as well.
So basically the plaintiffs argue, when you have each side paying their own agent, there’ll be more incentivized to negotiate. And so they’re predicting that commissions would fall. Now, the NAR has pushed back strongly against this as have the other brokerages, but the NAR is really the lead defendant here, and they take, they’re the shield for the industry in this case.
And so they argue that this is the most efficient way of doing things and that it would actually be a calamity for first time buyers and low-income buyers. If they have to pay their agent themselves, they say they need that expertise, but they wouldn’t be able to afford it. So that would be a really big problem.
And basically they also say as well that the seller gets a lot of benefit from the buyer’s agent, bringing forth a buyer who’s willing to pay hundreds of thousands of dollars for their home. And so they should be willing to pay for that service of procuring a buyer for them. And so that’s kind of the dramatic, earth shaking scenario in which you have far fewer agents, far fewer buyers who are using agents, using them in a different way.
You can also make a case for the status quo, which would basically be, even if the sellers aren’t required to pay out the buyer’s agent, they might just continue to do so anyway because it’s the easiest way. Again, if you’re a buyer, you’re not allowed to fold your buyer agent commission into the mortgage.
It’s kind of done implicitly through this process in which the buyer’s agent get paid, but you can’t just tack on this extra amount and say, “This is going to go straight to my agent once I get this loan.” So the industry might be highly incentivized to find some way to allow financing for these buyer’s agents.

Henry:
There we go.

James:
Find some way so that even if the buyer can’t pay their agent out of pocket, find some way for them to still be able to afford to do that through some sort of loan.

Henry:
Yeah. That’s where my brain went, James. You talk, I can understand thinking that yes, this might be problematic for new home buyers because not understanding the process of how this is supposed to work, and then getting themselves into a situation where they either, they’ve gone into a transaction and didn’t get the amount of money that they could have gotten had they been educated.
Also, the cost of paying your agent, if you’re a buyer. I get that, but buying a home in general is expensive and people are figuring out ways to do it, just like you said, because they’re forced to figure out ways to do it. That either means they’re saving up enough or there’s programs or incentives out there that are helping them be able to afford that. And I don’t see why that couldn’t be the case for also helping you pay for your agent. We just don’t have to go figure that problem out right now because the system doesn’t force people to.
So I am kind of on the fence about all of this because I’m in this business and are educated on the practices, and I think there are those people who are from the outside looking in, see agents as people who just unlock doors and show you properties. And a lot of the work that they do is that. But I think everybody’s like, “I could do that for myself.” Until it comes down to things like negotiation.
Most people are uncomfortable with negotiations and a lot of these transactions, a lot of the money that we’re talking about that goes back and forth happens in this negotiation. And so I think that if you decouple it and now you have to go pay for your own representation and then you get into this negotiation that you don’t know how to do, you could end up hurting yourself.
And so I think there’s a lot of weight with saying, “I want to pay a professional, especially when it comes down to the negotiation aspect of real estate.” And when you think about negotiating in terms of professional services that are outside of real estate, we do pay people based on percentage of the deal, if they negotiate for us better. That’s a common practice amongst other industries to say, “I’ll pay a professional to negotiate with me and if they get me more money, I’m happy to pay them a percentage of whatever it is they go get me.” And then there’s some areas of real estate where, “We don’t pay people based on a percentage.”
I don’t pay my plumber based on the percentage of the value my home is. I pay them hourly based on the service that they provide. And so I can kind of see both sides, but I think negotiation is in our form and I don’t know that agents even do it really well. I think that having a good negotiator doesn’t necessarily mean your negotiator needs to be an excellent real estate agent to get you the best outcome.

James:
Yeah. I think that’s a really interesting point about the need for some professional help and guidance along the way, I even, I talked to Steve Brobeck who’s a senior fellow for the Consumer Federation of America. Very outspoken critic of the current system of agent commissions and has argued that basically, why are agents being paid essentially the same commission, whether they’ve been in the business for 30 years or at the peak of their game or they’re just fresh out of getting their license and going through a few weeks of coursework and passing that test.
Even he told me that he works with the real estate agent would never go through this process without a real estate agent, because a lot of times you really need someone who can just kind of guide the process along to, aside from even the negotiations, just there’s so many different steps along the way and paperwork and different processes to go through to actually reach that finish line. And then on top of that, you do have the issue of the strategy of what kind of offer do you put in and what kinds of contingencies should you push for and all these different things that really do require some expertise here.
And so you do see a case, and I think the plaintiffs aren’t saying, they’re not arguing for the debt of realtors altogether. They’re basically saying that there should be more negotiating on commissions. And that’s really their key point here is that there just isn’t enough negotiating right now. There isn’t enough competition on commissions relative to what you’d expect to see in a competitive marketplace.

Dave:
James, how concerned should real estate agents be about this? Is this going to be a threat to their livelihood?

James:
It is interesting, because when I started reporting on this back in the spring, it hadn’t really been on my radar too much, prior to that with the Moehrl case getting class certification in the spring, that’s the bigger of the two lawsuits.
Again, more than $40 billion at stake there. That started to raise more eyebrows, I think. But even then, when I was talking to agents, I would ask them just at the end of a conversation, “Are you worried about these lawsuits? Is this causing any concern?” And for the most part they would say, “No, it’s really not even on my radar that much.”
I think we’ve started to see that change actually over the summer as I talk to people. Those conversations at least, that conversation of action, “Wait, should I be worried about this? Is this something that I should be thinking about?”

Dave:
Now that you mentioned it, I’m worried.

James:
I think you are starting to see more of those conversations. Now, on the other hand, it’s practically guaranteed that whichever side loses at trial, they’re going to appeal. The NAR has a very powerful lobby. If they were to lose, obviously they got to push back the other side as well.
There’s a lot of money and just kind of the way of doing things is at stake right now, and so you’re likely to see this continue to play out in the years to come. And that I think makes it hard to prepare for agents, the question of should they be concerned right now? I think the kind of logical thing right now is to, there’s not much they can do at this point other than be really upfront and clear about their compensation and getting things kind of nailed down through representation agreements so that every site feels like they’re very clear on the commission that they’re going to be paying or receiving and what they’ll be getting in exchange for that.
So it sounds kind of nebulous, but providing value for clients, I mean, that’s something that brokerages are really going to be, I think pressing upon their agents in the months and years to come is really making sure that clients feel like they’re getting their worth out of the commission that they’re paying. And so making it clear to them kind of what they’re getting in exchange.
And again, you might see people kind of shifting more toward trying to get listings, which is under less of a threat than the buyer agent commissions just because of if you have fewer buyer agents out there or fewer buyers willing to work with a buyer agent, you’re still going to have people who are needing to sell their home, they’re still going to be listing their home, and you can still work with them on that side as well.
So that’s kind of how people might start to think about preparing, but again, this is going to be a long road. There’s going to be a lot of twists and turns along the way, and it’s going to take a while to fully play out.

Henry:
Yeah, I mean, I agree with you. When you think about, should agents be concerned right now, in my opinion, this kind of just goes along with what we’re seeing in the real estate industry as a whole, as things are tightening, as interest rates are rising, we’re starting to really see that the people who are succeeding both with investing or with navigating this process are the people who are educated and the people, I think if you’re an agent, you don’t need to be concerned.
If you’re focused on being the best agent and running the best business you possibly can, because if you’re going to set yourself apart, I think the top percent of real estate agents are going to continue to be the top. They’re going to continue to get the business because they understand their value, they understand how they help people, they understand how to be good marketers to find their customers.
I think the people you’re going to see this hurting are the people who are just average agents, who are just in it because they want to pick up a few commissions here and there, and aren’t really running a tight ship or a great business. I think those people might potentially get hurt as things change, if things change. But the market is kind of weeding those people out anyway, because it’s harder as an agent right now to sell homes because there’s not a ton of them and there’s a ton of agents and buyers. There’s not as many buyers as we would typically see because of people getting priced out.
So I mean, the market’s already trimming the fat, so I think those who are left behind are going to be top producers and continue to be top producers.

James:
Mm-hmm. That’s definitely something that I’ve been writing about over the past few months, is we really saw this glut of agents, during the pandemic a lot of people, again seeking that flexibility, seeking those fatter commission checks, and since mortgage rates have risen over the past year and a half and deals have become harder to find.
I mean, it’s still competition for the homes that are on the market has been fierce, but with fewer homes being listed, that competition among agents has really heated up, and that’s something that just keeps coming up again and again in the conversations that I have.

Dave:
Well, James, thank you so much. This has been incredibly insightful and you did a great job explaining this situation to us and we really appreciate it. If people want to follow your reporting, where should they do that?

James:
Sure, so insider.com, under my byline James Rodriguez focusing on big stories about the housing market. On Twitter as well, Jamie, jamie_rod, R-O-D. You can keep up with my stories there as well.

Dave:
All right. Thank you so much, James. We appreciate it.

James:
Thanks so much for having me.

Dave:
Henry, I know you have a lot of thoughts about this one, so just let it rip. Just start going.

Henry:
You know what? I think it’s cool from the perspective of it’s shedding light on a system that’s been in place for a long time, that may or may not be fair. I’m not here to tell you or say that I think it’s a fair system or not a fair system. I can argue literally both sides of whether or not I think it’s fair.
I do think decoupling to some level makes sense because why should I have to pay for someone who doesn’t represent my best interests? Just on its surface, sounds like a fair question to ask, but man, I think that this system has been in place for a long time and there’s a lot of, I mean, this is like a legacy business. There’s lots of agents and lots of people with a lot of money that are going to have a lot to say about them not wanting this to change, and I think it does need to change somewhat.
Now, does it need to just be completely thrown to the wind and we need to bring in this new system? I’m not sure, but man, I know there’s a lot of ruffled feathers amongst agents when they hear about this lawsuit. And I think at the end of the day, no matter what side you’re on, we need to remember that this is about people in protecting people with them buying and selling, what in most cases will be their most valuable asset.
And so no matter what side you’re on, if we can look at this from the perspective of truly wanting to make sure that the people selling these assets are the ones that are protected, then I think maybe we can find some middle ground.
But I’m all for ruffling some feathers and getting people to look at old systems and deciding if we need to potentially think differently about how we do things because there’s some commissions that I’ve paid and went, “I just paid a whole lot of money for nothing.”

Dave:
Yup.

Henry:
And there’s some commissions that I’ve paid and went, “I’m so glad I had that agent on my side and I would’ve paid him more if I needed to in that situation.”

Dave:
Totally. Yeah. And I agree we’re ruffling some feathers. Just for the record, I think NAR is one of the biggest lobbying organizations in the entire country. It’s like they spend hundreds of millions of dollars to protect these commissions, so you can expect them to put up a very big fight.

Henry:
Yes.

Dave:
I agree. Listen, I respect the work that real estate agents do. I obviously use them and think that they’re serve a very valuable part of the real estate industry. I do think it’s kind of interesting though, just like you said, rethinking how these professionals are compensated.
Something I keep thinking about is it’s been 3% and 3%, but over the last couple of years, a seller’s agent deserved no percent, and a buyer’s agent deserves 6% because it was so hard to buy for the last few years. And meanwhile, the sellers are dictating it and they’re doing nothing. You could have just put it up on the MLS.
So I do think there are some more flexibility about the way the system works might be beneficial to everyone. I’m not saying agents don’t deserve to be paid. They do, but I just think whether it’s a little more flexibility or maybe some-

Henry:
Transparency. I think is more-

Dave:
… unbundling. Yeah, transparency. But sometimes it’s like, “Yeah, are you paying for negotiation? Are you paying for them just to really move the transaction along?” Maybe there’s some way that you can unbundle this so that you can pay for what you need and not pay for things that you don’t need. I don’t know, personally, I doubt anything’s going to change, but I think it’s going to be really interesting to see how these lawsuits play out.

Henry:
When I think about the most beneficial real estate agent relationships I’ve had, it’s been where my agent has come in thoroughly explained the process of what happens and then how they play a role in making sure my best interests are protected in that. Because I do think a lot of people who are uneducated about real estate transactions, think that an agent just unlocks doors and shows them properties, and that’s not true.

Dave:
No.

Henry:
There’s a lot of work that an agent does that they make sound way more difficult than it actually is. But there are some very key important steps in the real estate process that you are absolutely going to want a professional to help you navigate. And I think adding that transparency in payment will also add transparency where agents are going to have to explain to you the process, where they’re going to add value, why they’re going to add value, and then people can decide if that’s something that they want or not.

Dave:
Yeah. Yeah. I think that’s a great way of putting it, and I agree. I’ve gotten so much value out of my agent relationships and really don’t want to make it seem like what they do is trivial. I do just think it is a weird, I think we can all agree it is weird the way they are compensated, and there’s probably a way.

Henry:
I mean, it took us a while to explain it in the beginning of-

Dave:
Yeah. Exactly.

Henry:
… how this actually works. A lot of people still don’t know that you don’t pay your agent, you pay one side and they pay the other. Just that in itself shows you we need more transparency.

Dave:
Yeah. I know this isn’t really of necessarily part of this lawsuit, but my sincere hope is that somehow out of all this, the MLS just gets standardized and there’s just one MLS in the country instead of 350.

Henry:
Yes. That would be amazing.

Dave:
Can we sue NAR for that? That’s not a real threat, anyone BiggerPockets, that’s a joke. It’s a joke. We’re not suing anyone, but man, that would be cool.
All right, well, before I get myself in trouble, let’s get out of here. Henry, if people want to connect with you, where should they do that?

Henry:
You can reach me, I’m best to find on Instagram. I’m @thehenrywashington on Instagram and I have no relation or to Dave Meyer or anything he just said, so don’t come at me NAR.

Dave:
Absolve you of any connection to what I just said. It was a joke. We love you. And I’m Dave Meyer. You can find me at Instagram, @thedatadeli. Thank you all so much for watching On The Market. We’ll see you for the next episode.
On The Market is created by me, Dave Meyer and Kailyn Bennett. Produced by Kailyn Bennett, editing by Joel Esparza and Onyx Media, research by Puja Jindal, copywriting by Nate Weintraub. And a very special thanks to the entire BiggerPockets team.
The content on the show, On The Market are opinions only. All listeners should independently verify data points, opinions, and investment strategies.