NAR Antitrust Lawsuit Strategy: New Commission Script for Sellers
New 10-minute training scripts and tips to help agents navigate commission conversations in the wake of NAR Lawsuits.
By Darryl Davis, CSP
Last week, I read an announcement on Inman News that is tied to the NAR Antitrust Lawsuit that I wanted to communicate with you immediately.
It has to do with REBNY, which is a group of brokers/companies in New York City that have their own association and their own board. It’s called the Real Estate Board of New York, and they just announced a rule change regarding this commission issue. A recent post by the group stated, “Listing Brokers will no longer be permitted to make the offer of compensation to the buyside broker – even if it is on the seller’s or owner’s behalf.” Essentially, what they’re saying is that from now on, the seller will pay the buyer’s agent directly as opposed to the listing agent paying the selling agent.
According to The Real Deal, these changes will be made via the 2024 Universal Co-Brokerage Agreement and will start January 1st.
Now, I see this as a good thing, and I’m going to give you some dialogue and show you how to present this idea because I predict that this model is one that I believe a lot of other boards, if not all boards, and all MLSs are going to adopt in the aftermath of these lawsuits.
But first, as a disclaimer, because we’re in the middle of this lawsuit, I will be using numbers as examples ONLY. We’re not talking price-fixing. You decide what you charge as an individual agent to homeowners and to buyers. That’s all on you because commissions are negotiable. I’m going to just simply use the number I used when I was an agent, which is three percent to the listing agent and three percent to the selling agent.
So, without further ado, let’s get ahead of this with the following dialogue on how to present the listing commission directly to the seller.
Here’s the dialogue:
“So, Mr. And Mrs. Hunna Hunna, we’ve already agreed to the listing commission side of things. You chose the 3% plan, which is great. Now, let’s talk about the selling agent.
Whenever a buyer comes to us, they’re going to be working with an agent and that selling agent is going to charge a fee as well. I don’t know what their fee is because fees are negotiable, but I’m going to use me as an example. When I work with buyers, my selling fee is 3%. So, we’ll use that as an example. Now, let’s say we’re asking for $500,000 on MLS. We have a buyer who comes in and wants to buy the house. They have their own agent, and they want to pay us the $500,000, and they’re putting down 10%. Okay?
So, in that 10%, they’re paying $50,000 down. Plus, they’ve got their closing costs. Here in New York, closing costs would be about $30,000. So now you’re at $80,000. Then you factor in moving costs, plus understand that the interest rates have doubled in the past year, so they have that burden as well. That’s all a lot, right?
Now, let’s say this buyer who’s got 10% to put down, they want to buy, but they are committed to pay their agent 3% commission. That means they don’t have 10% anymore. Now they’re at 7%. Now that problem makes it more of a burden for the buyer to qualify for the mortgage.
In other words, all of these factors working together is making it harder and harder for that buyer to purchase a home at that price and qualify for the mortgage. One of the things we could do as an option is to help that buyer. Why would we do that? Because, if we have a pool of buyers for our $500,000 house like this, and some of them find themselves in this situation, that means our buyer pool could shrink, and when our pool shrinks, our activity shrinks, which means offers shrink, which means less of a sales price. So, as marketing experts, we don’t want to shrink our buyer pool; we want to expand our pool. Now, I’m going to be doing everything I can do to expand our pool of buyers by listing in the MLS and marketing the property with flyers, phone calls, and ads and hosting open houses, etc.
One other way to help expand that pool of buyers is to offer a Seller’s Incentive Fee to pay the buyer’s agent’s fee for them, which means those buyers now don’t have to worry about that.”
Your sellers might ask you then how much you think they should offer. I would then say back, “I don’t know, because I don’t know what that agent is going to charge because fees are negotiable, I normally charge 3%, but every agent is different. They could charge $500. It could be 1% or 2%. If their agreement is 3%, like mine, that doesn’t mean you have to cover that whole 3% either. You can choose to that’s fine, or you can offer a Seller’s Incentive Fee for a lesser amount, which would cover a portion of their commission obligation, and then they could work out the difference with their agent. Either way, if you helped buyers to remove their obstacle of that commission that would be a big incentive to choose your home in this market.
The higher we go, the more marketable a property is. So, if you’re in a market where prices are still going up, you could do this incentive to help cast a wider net for more buyers. To be honest, what I’d love to see is we’re at $500,000 now. If we put it out on MLS for $515,000, I don’t think that’s going to hurt us at all and that’ll expand our buyers.
If we make that extra $15K as part of the 3% incentive fee, we would just take that incentive fee of 3% and put it into our asking price. So, now I’ll change the MLS from $500,000 to $515,000 and there you go. So, what do you think of this option? Does it make sense for you?”
I hope this dialogue I just gave you helps you communicate this new strategy to your sellers.
Real Estate Industry Growing Pains
One important thing that I want you to know is that with all this lawsuit action, we are in a similar spot we were when the pandemic first started. It feels a little like we’re flying new airplanes while building them with our hair on fire! Because things are changing so rapidly with all of these lawsuits, you need to prepare yourself for a deluge of information. Things are going to be coming at you quick in the days and months to come, but know that my team and I are going to be on top of it for you – we’re going to be there to help you by creating strategies and dialogues like this one that can help you navigate these new conversations with more confidence.
This is the analogy I’m going to use to explain: if you had a knot in your shoulder, and you go to a massage therapist to work out, when they first start to work on that knot – OUCH – it hurts right? Eventually, however, they work through the knot, get it broken up and you start to feel better. Our “knots” right now are the Sitzer and Moehrl antitrust cases class action lawsuits, and as we work through it, we can expect a little pain and a few mistakes and that’s NORMAL.
It’s going to be painful and uncomfortable, but eventually we will work through the tough parts. One thing that is absolutely true about our industry is that every time we had SOME earth-shattering change or disruption, whether it was discount brokers or what was some of the pandemic, or every time we thought the sky was falling on our industry, that thing made us stronger as an industry.
I believe this growth is going to happen now, too, especially in light of this commission lawsuit and the new guidelines and rules that are born from them. Agents are going to find it easier to get listings because agents no longer have to coach sellers on the full commission, but only their portion, and I truly believe this industry is going to be better for it.
POWER AGENTS®, we just did a very important and extensive training for you Buyer Agent Beware: What You Need to Know About the New Commission Model. Watch it here in your Classroom, and download the all-new Commission Agreements, Seller’s Concession Forms, and of course, the slides to help you get ahead of the learning curve on this must-know information and help you fully understand how it all affects your future.
We have future trainings already scheduled as well that you’ll want to put on the calendar so that you can stay informed and competitive about this topic! See them all and register at www.PowerAgentWebinar.com
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