New York Times relights the fuse on NAR settlement, cooperative compensation

With that backdrop, it’s not surprising that many industry professionals were up in arms about a recent episode of “The Daily” podcast featuring Times real estate reporter Debra Kamin.

During the episode, Kamin and host Michael Barbaro discussed how things have — and have not — changed in the real estate industry since the NAR settlement and its mandated business practice changes were implemented in August 2024.

‘The great real estate workaround’

“The expectations were sky high. The words that were being used by economists and analysts in the industry were earth-shattering: watershed, landmark, the greatest change of the real estate industry since the New Deal,” Kamin said on the podcast.

“They were really pinning hopes that this was going to shake up a stagnant housing market and offer real relief to consumers in the U.S. who desperately need it. And a lot of that was pinned to the idea that rules were going to be followed to the letter. And they were not.”

Kamin said agents have found a straightforward path for sharing offers of buyer broker compensation beyond the MLS, since that is banned by the terms of the settlement.

“I call it the great real estate workaround,” Kamin said. “The settlement was designed to take away these conversations that agents were having about commissions. These conversations were happening over MLSs […] and the key focus on the settlement was that should be no more.

“Moving forward post-settlement, the rules said that sellers pay their own agents, buyers pay their own agents. If you work with a real estate agent, it’s up to you to pay them. That was what was supposed to happen, which should have brought a lot more competition and negotiation into the marketplace.”

Kamin argues that the specific language of the settlement that only bans commission offers from the MLS has allowed agents and brokers to find alternatives.

Examples given by Kamin include agents posting photos of listings in the MLS with three cookies to signify they are offering the buyer’s agent a 3% commission, dedicated commission sharing websites, and agents contacting each other via text, email or phone to find out what the listing agent or seller is willing to pay.

NAR pushes back

NAR has clarified that workarounds like the photos in the MLS violate the settlement. And agents have been warned that commission sharing sites operate in a legal gray area.

But nothing in the settlement agreement prevents cooperative compensation. Sellers can offer to pay buy-side compensation, and agents can communicate about commission offers away from the MLS.

“In their podcast, The New York Times misconstrues basic facts of the settlement agreement regarding offers of compensation,” a NAR spokesperson told HousingWire via email. “Simply put, communicating offers of compensation off-MLS is not a ‘workaround.’

“The terms of the settlement, which have been granted final approval by the U.S. District Court for the Western District of Missouri, expressly allows for this practice,” a NAR spokesperson wrote in an email. “NAR has consistently opposed any circumvention. We have loudly, clearly, and repeatedly supported compliance with the settlement and will continue to do so.”

NAR is not the only industry player to take issue with the Times’ remarks. In a LinkedIn post, NextHome co-CEO James Dwiggins wrote that the 90% of the podcast is “just factually wrong.”

“[Kamin is] not even trying to hide her bias against the industry — it’s that apparent,” he wrote.

Dwiggins added that it’s important for the industry to speak up and ensure that the facts are shared with the public.

Commenters on the Facebook version of Dwiggins’ post seemed to agree with him, calling the podcast “gross and misleading,” and claiming that Kamin “twisted statements to support a narrative” that she and the Times want to create. 

But there was some pushback on LinkedIn, including from top-producing agent Steve Koleno. In a comment on Dwiggins’ post, Koleno said he agreed with most of the podcast.

“This industry has resisted change for too long — and that’s hurt consumers more than helped them,” Koleno wrote. “Too many leaders are clinging to a model that’s outdated and self-serving. That’s clear. What’s not clear is why more agents don’t see it but clearly most consumers do.”

Where do commissions stand?

The podcast also dove into current home prices, which have not come down as some economists cited in the episode predicted. They attributed this to agent commissions remaining fairly static, according to most studies. 

Data from a recent HousingWire survey shows that nearly 60% of agents say their buy-side commissions have stayed the same, while roughly 30% say they have decreased and 12% say they have increased.

Additionally, 82% of listing agents reported their typical sell-side commission fell in the range of 2% to 3%.

In the comments section of Dwiggins’ Facebook post, real estate professionals claimed that the statements on the podcast ignored the link between the lack of housing supply in many markets and rising prices.

FSBOs and Zillow

Kamin tried to illustrate the challenges of attempting to transact real estate without an agent. She attributed this to Realtors being “very committed to maintaining the status quo” and “mobilizing together to fight [for-sale-by-owner sellers] every step of the way” by making it “extremely difficult to work around the system.”

As part of this, she highlighted the story of Michael Chambers, an FSBO seller in Boulder, Colorado. Chambers has used social media to document his attempt to sell his $2.7 million home on his own.

After discovering that he would not be able to list the property on his local MLS without the help of a real estate agent — as Colorado law does not allow for MLS entry-only agents to operate easily in the state — he wanted to get the property listed on Zillow. But he discovered that as an FSBO listing, his property would be kept in a separate search section from the MLS listings. 

While Zillow did not wish to comment on the Times podcast or the Chambers story, it is widely known in the real estate industry that Zillow was forced to adopt a two-tab listing display in MLSs that have adopted NAR’s no-commingling rule in order to obtain access to IDX feeds.

Recently, some MLSs have been repealing the rule, allowing Zillow to revert to a single tab design in these territories. As of May 1, Zillow was commingling listings in Boulder on its site. 

Other objectors

Although Kamin may be the most public critic of how the real estate industry has responded to the NAR settlement-mandated business practice changes, she is certainly not the only one.

In October 2024, prior to the final approval of the settlement, University of Buffalo law professor Tanya Monestier filed an objection. She claimed that the settlement was “the worst of all possible worlds” and that its implementation had been a “disaster.” 

Like Kamin, Monestier claimed that agents were using workarounds to secure higher commissions and confusing clients to get them to pay them more.

According to Monestier, there was “ample evidence” of agents asking buyers to sign modified buyer representation agreements, which allow the buyer’s broker to increase their agreed-upon compensation to whatever the seller is offering.

Additionally, she claimed that some buyers were being asked to sign documents that allow for “seller paid bonuses,” if the seller is offering more compensation than the buyer and their broker agreed to. In other cases, some buyers and agents were signing agreements that tailored the buyer broker compensation to whatever the seller was offering.

NAR addressed these claims in its motion for final approval of the settlement in November 2024. The trade group, along with the Sitzer/Burnett and Moehrl plaintiffs, claimed that Monestier’s objection relied “entirely on anecdote and conjecture.” They said she failed to offer any realistic alternatives to the business practice changes outlined in the settlement.

“Instead, she advocates for returning to the ‘old’ system — even though a jury deemed that system anticompetitive and found that the brokers enforcing and operating under it had overcharged consumers by more than a billion dollars in Missouri alone,” the filing states.

Will the DOJ respond?

NAR’s settlement agreement allows for agents to share offers of compensation, both cooperatively and from the seller, as long as it doesn’t occur on the MLS. Despite this, the U.S. Department of Justice (DOJ) has made it clear it would like to see the practice end. 

At a May 2024 status hearing for the Nosalek commission lawsuit, DOJ attorney Jessica Leal said the department believes that “offers of compensation should not be made anywhere, but certainly not on the MLS.”

This declaration came roughly three months after the DOJ called for a prohibition of cooperative compensation in its statement of interest in the Nosalek suit.

While the DOJ ultimately objected to the settlement, its qualms were not with how agents could and could not share commissions. It remains to be seen if the department will pursue further action on this issue.