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Sharpen Your Saw: Making Buyer Representation Work

The sky is still falling? Maybe.

It is definitely time to begin sharpening two saws. The sharper, the better.

Roughly a month ago, the lawsuit Nosalek v. MLSPIN was settled in New England. Similar to ongoing cases mentioned in this last newsletter, the focus of the suit revolved around the idea that the MLS could not have a rule, similar to an NAR rule, requiring listing brokers to offer a blanket, unilateral offer of compensation to buyer brokers in order to submit a listing to MLS PIN. The key here is that the MLS was the one settling. So, what’s the big deal?

If/when the agreement is approved by the US District Court, the MLS’ rules will be altered to state, 
“The Service will accept for Filing a Listing only if the Listing Broker has first certified, through the appropriate key, code or symbol on the Property Data Form as specified by the Service, that the Listing Broker, before entering into the Listing Agreement with respect to that Listing, notified the Seller (i) that the Service does not require the Seller to offer compensation to Cooperating Brokers, and (ii) that, while a Cooperating Broker may request compensation from the Seller in lieu of requesting from the prospective purchaser all or a portion of any compensation to which the Cooperating Broker and prospective purchaser may agree for the Cooperating Broker’s services to that prospective purchaser, the Service does not require the Seller to accede to such a request.”

A couple of things:
1. First, a unique thing about this suit, unlike the biggies Moehrl and the Missouri case, is that the National Association of Realtors is not named as a defendant. This means the defendant in this case did not have the NAR clout and fleet of lawyers. 
2. Next, the MLS caved. It deserted the brokerages also named in the suit Advantage, RE/MAX, Keller Williams, and Home Services of America as well as NAR. They must have thought their chances in court were not so good.

Technically, this has no effect on the big cases. It does, however, give a bit of a look ahead to what might happen in those much larger one (where NAR is a defendant).

My suggestion is that 1) all agents revisit the way in which they explain compensation to potential Buyers and/or Sellers. 2) I also suggest a “revival of value.” What I mean is spending time to work on your worth and how well you are able to express it.

I’ve created a class reviewing the cases, and sharing tips to be ready for the compensation future, wherever it goes. I expect to offer it wherever I can, AND on ZOOM in the very near future. Stay tuned.