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Real estate brokers working for the nation’s largest brokerages and franchisors in Utah allegedly illegally conspired with the National Association of Realtors to keep broker commissions artificially high, according to a new lawsuit filed on Friday by a homeseller near Salt Lake City.
The new commission lawsuit, filed by Dalton K. Jensen, repeats many of the claims made in nearly two dozen separate lawsuits filed in recent years that generally challenge the way real estate buyer agents and their brokerages get paid.
Jensen filed the lawsuit in the U.S. District Court in Utah, alleging in his complaint that rules created and followed by NAR, the brokerages and franchisors, and their brokers and agents amounted to an illegal conspiracy.
“The cornerstone of Defendants’ conspiracy is NAR’s adoption and implementation of a rule that requires all seller’s brokers to make a blanket, unilateral and effectively nonnegotiable offer of buyer broker compensation (the ‘Adversary Commission Rule’) when listing a property on a Multiple Listing Service,” the complaint alleges. The rule is also known as the Participation Rule or the Cooperative Compensation Rule.
The complaint accuses several of the same firms that were named as defendants in the landmark lawsuit known as Sitzer | Burnett, which went to trial in October. That includes NAR, Anywhere Real Estate, HomeServices of America, RE/MAX and Keller Williams.
It also includes the three firms that have reached proposed settlement agreements with the plaintiffs in two lawsuits, including Anywhere, RE/MAX and Keller Williams. Those proposed settlements must be approved by the court to go into effect.
Jensen’s lawsuit also mentions the four multiple listing services in the state, though it doesn’t name them as defendants.
It says there are thousands of members of the proposed class, which includes homesellers who used a listing agent from one of the firms to sell a home in Utah since Feb. 9, 2020.
It asks for a permanent injunction preventing the industry from requiring sellers to pay buyer brokers and an award for damages.
The complaint alleges that “most” buyer agents will steer clients away from listings that offer a lower commission.
The lawsuit also alleges that NAR created the rules and the brokerages and franchisors required their brokers to follow them, which effectively led to commissions that are higher than they otherwise would be.
“This structure results from a lack of competition and makes no economic sense, except for the buyer broker,” the complaint alleges.
“If NAR’s Adversary Commission Rule were not in place, then the cost of buyer broker commissions would be paid by their clients (home buyers),” the complaint alleges. “Buyer brokers would thus have to compete with one another by offering a lower commission rate.”
The complaint alleges the rule kept buyer broker commissions between 2.5 percent and 3 percent, “despite the diminishing role of buyer brokers” as a result of real estate portals.
Inman reached out to all of the defendants named in the new lawsuit. In a statement in response to the lawsuit, Mantill Williams, a spokesman for NAR, defended the commission-sharing rule and said the organization would respond in court.
“The cooperative compensation practice makes efficient, transparent, and accessible marketplaces possible,” Williams’ statement said. “Sellers can sell their home for more and have their home seen by more buyers while buyers have more choices of homes and can afford representation.”
RE/MAX told Inman it didn’t comment on litigation, but that its existing settlement, if approved, would be nationwide.
“It would release RE/MAX, LLC, U.S. independent regions, U.S. RE/MAX brokerages and affiliates from any claims related to the Burnett/Moehrl lawsuits,” the company said. ”It would also settle, on a nationwide basis, any similar claims that could be brought.”
Anywhere and Keller Williams didn’t respond to a request for comment, but their settlements were substantially similar to the RE/MAX settlement.
The lawsuit alleges the rules kept commission rates high even while other services that benefit from the Internet have driven costs down, such as travel booking, insurance, banking and stock brokering.
The complaint says that “a standard of conduct in NAR’s Code of Ethics permits and encourages buyer brokers to tell their clients that their services are free, which obviously is not a true statement.”
NAR changed that rule in November 2021, and the current version of its Code of Ethics says Realtors “must not represent that their brokerage services to a client or customer are free or available at no cost to their clients,” unless they actually aren’t paid.
Jensen is being represented by the law firm Christensen & Jensen and the Law Office of Bobby Udall. Jensen didn’t immediately respond to a request for comment.
If given the opportunity, sellers would pay “far less” than the 2.5 percent to 3 percent commission commonly given to buyer brokers, according to the complaint.
Jensen sold a home in Eagle Mountain, Utah, about 38 miles south of Salt Lake City, in October 2022 using an Exit Realty agent. He paid a 6 percent commission, which was split with the Century 21 broker representing the buyer.
The complaint alleges that the firms took part in the conspiracy by serving in roles within NAR that created the rules and by requiring brokers and Realtors to comply with the rules.
HomeServices of America Executive Vice President Chris Kelly said the company was reviewing the suit.
“We are analyzing the specifics of the case, particularly the timeframes and MLSs mentioned in the suit, to ascertain the relevance of HomeServices as a defendant in this matter,” Kelly said, “especially considering that we do not have any company-owned brokerages operating in the specified areas.”
Full list of defendants:
- National Association of Realtors
- Anywhere Real Estate
- HomeServices of America
- HSF Affiliates
- BHH Affiliates
- RE/MAX
- Keller Williams
- Keller Williams of Salt Lake
- KW St. George Keller Williams Realty
- KW Westfield
- Equity Real Estate
- Century 21 Everest
- Realtypath
- Windermere Real Estate Services
Read the complaint:
Email Taylor Anderson
Editor’s note: This story was updated to include comments from NAR and RE/MAX, which came in after this story was first published.
