Real Estate

Broker-Owned MLSs Have Forked Over Millions Under NAR Opt-in Deal

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With notable exceptions, the vast majority of more than 600 multiple listing services across the country have chosen to opt in to a National Association of Realtors settlement to be released from potential antitrust claims homesellers could lodge against them, an Inman review of hundreds of MLSs reveals.

June 18 was the deadline for Realtor-affiliated and non-Realtor-affiliated MLSs to opt into the deal. Virtually all affiliated MLSs have opted in and will have to pay nothing under the terms, unlike non-Realtor MLSs who will have to pay outright under an opt-in formula or enter mediation to determine an amount.

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About half of such broker-owned MLSs have opted in, with some who have opted out stating their rules are different from those that have attracted antitrust litigation. One tiny non-Realtor MLS opted in, but told Inman it was dissolving.

Non-Realtor MLSs that chose to pay into the settlement fund will be forking over at least $5,383,800 combined. That amount is likely to grow considerably after remaining non-Realtor MLSs reach settlements through mediation.

Dawn Pfaff, Photo credit: Family Art Photography by Vasi Studio

My State MLS, a privately-held broker-owned MLS that has 62,000 subscribers and is not associated with NAR, told Inman it will not be opting into the deal, a decision founder Dawn Pfaff said was “made after careful consideration.”

“Notably, My State MLS has never required buyer-broker compensation and has always had a ‘No Fee’ option on a per-listing basis,” Pfaff said. “We do not require any type of board membership and we do not mandate that all licensees in an office or brokerage join.

“My State MLS offers the only competition to the existing MLS structure, giving brokers a viable, non-NAR affiliated choice to list properties anywhere they are licensed.

“My State MLS does not have rules dictating minimum required compensation, fines or any service or rule deemed anti-competitive.”

Pfaff said she wasn’t worried about any potential litigation as a result of not opting in.

“Since we don’t have the same rules or the same situation that was alleged against the others, we are not concerned,” Pfaff said.

Jeremy Crawford

Similarly, Atlanta-based broker-owned First MLS, which has more than 57,000 subscribers, will not be opting into the deal. First MLS CEO Jeremey Crawford told Inman FMLS had never had a rule requiring an offer of compensation in the MLS and compensation had never been a required field.

“FMLS has never been a part of the compensation between a seller and a buyer,” Crawford said.

Michael Ketchmark

Asked what happens to MLSs that don’t opt in, lead plaintiff’s counsel Michael Ketchmark of Ketchmark & McCreight told Inman, “If an MLS does not opt in and there’s proof that it is violating our nation’s antitrust laws, we will take swift legal action.”

NAR’s proposed settlement, which has received preliminary but not final approval from the court, requires MLSs to make certain rule changes.

For instance, NAR will be eliminating the primary rule at issue in multiple antitrust lawsuits against the trade group, known as the Participation Rule or the cooperative compensation rule, which required listing brokers to offer compensation to buyer brokers in order to submit a listing to an MLS.

All MLSs who opt into the deal, regardless of Realtor status, will be required to ban offers of compensation from listing brokers to buyer brokers through the MLS.

While, per the settlement, both non-Realtor and Realtor-affiliated MLSs have until September 16, 2024 to implement the rule changes, NAR is requiring Realtor-affiliated MLSs to make those rule changes by August 17.

Realtor-affiliated MLSs opt into the settlement by filling out its “Appendix B — Realtor MLS ‘Opt In’ Agreement” and do not have to pay anything in order to be covered.

Broker-owned MLSs opt in by filling out its “Appendix D — Non-Realtor MLS ‘Opt In’ Agreement,” and have two options if they want to be covered:

  • Option 1: Within 120 days after the NAR settlement is preliminarily approved by the court, deposit into an escrow account an amount equal to 100 multiplied by the number of the MLS’s subscribers in calendar year 2023 as reflected in the T360 Real Estate Almanac.
  • Option 2: If an MLS has a “good faith belief” that it does not have the ability to pay the amount required under Option 1, the MLS agrees to participate in a non-binding mediation with the plaintiffs’ attorneys within 110 days after preliminary approval of the settlement — at the MLS’s cost.

As of Tuesday afternoon, only 18 of 602 Realtor-affiliated MLSs had not opted into the settlement, most of which appeared to be either tiny, merged with a larger MLS that had opted in, or potentially defunct, according to information provided by Ketchmark.

At least one MLS, Connecticut’s SmartMLS, sent out a press release Tuesday announcing its decision to opt in “to minimize disruption in the marketplace,” but made clear it had “serious concerns” about the deal and would be “actively monitoring” the practice changes required “to determine whether they harm historically disadvantaged communities, low down payment buyers, and first-time homebuyers.”

While T360 lists SmartMLS, which has 21,324 subscribers, as broker-owned, the MLS believes it qualifies as a Realtor-affiliated MLS because it is controlled exclusively by Realtor associations and Realtors and is required to make all the practice changes in the NAR settlement.

At least 18 of 40 non-Realtor MLSs had opted in, with 10 choosing to pay under Option 1 and eight choosing mediation to figure out how much they will pay under Option 2.

The Real Estate Board of New York’s RLS, which has more than 15,000 subscribers, is not Realtor-affiliated, and has itself been a target of antitrust commission litigation, has chosen to be covered under Option 2, rather than Option 1, which would have required a payment of some $1.5 million.

“REBNY is in discussions to participate in the NAR settlement,”  spokesperson Christopher Santarelli told Inman in a statement. “Specific terms will be finalized in the coming weeks and months.”

California-based MetroList, which had 21,660 subscribers as of Dec. 31, chose Option 1, requiring a payment of $2.166 million. That appears to be the largest payment among the non-Realtor MLSs.

Broker-owned Alaska MLS, which had 2,388 subscribers last year, also chose Option 1.

“Our obligation equated to $238,800,” Alaska MLS CEO Michael Smith told Inman.

Southeast Georgia MLS, which had 170 subscribers in 2023, chose Option 1 and therefore agreed to pay $17,000, but on Tuesday spokesperson Cindy Dell told Inman, “SEGA MLS is dissolving.” SEGA MLS did not respond to follow-up questions inquiring whether its dissolution was related to the settlement.

As of June 18, these are the non-Realtor MLSs that had opted in; the option they chose; if they chose the first option, how much they’re paying; and if they chose the second option, how many subscribers they have:

  • Alaska MLS (Option 1: $238,800)
  • BAREIS (Option 1: $736,800)
  • Brooklyn MLS (Option 2: 3,635 subscribers)
  • Central New York Information Service (Option 2: 1,926 subscribers)
  • Central Virginia Regional MLS (Option 2: 6,689 subscribers)
  • Greater Southern MLS (Option 2: 1,273 subscribers)
  • MetroList (Option 1: $2.166 million)
  • Minot MLS (Option 1: $22,600)
  • MiRealSource (Option 2: 2,547 subscribers)
  • MLS Exchange (Option 1: $361,300)
  • Real Estate Board of New York RLS (Option 2: more than 15,000 subscribers)
  • Real Estate Information Network (REIN) (Option 1: $889,600)
  • Richmond Listing Management Service (Option 1: $15,700)
  • Southeast Georgia MLS (Option 1: $17,000)
  • Spanish Peaks MLS (Option 1: $15,700)
  • Upstate New York REIS (Option 2: 3,145 subscribers)
  • West Penn Multilist (Option 1: $920,300)
  • Western New York REIS (Option 2: 3,706 subscribers)

As of June 18, these non-Realtor MLSs had not opted in:

  • My State MLS (62,000 subscribers)
  • First MLS (57,472 subscribers as of Dec. 31, according to T360)
  • Northwest MLS, which publicly stated it would not be opting in last month (33,121 subscribers)
  • Hudson County MLS/Realty MLS
  • MLS Property Information Network (MLS PIN) (44,600 subscribers)
  • Garden State MLS (26,854 subscribers)
  • Central Jersey MLS (10,448 subscribers)
  • Consolidated MLS (Columbia MLS) (3,799 subscribers)
  • Liberty Board of Realtors (6,762 subscribers)
  • Willamette Valley MLS (3,422 subscribers)
  • Tennessee Virginia Regional MLS (hybrid brokerage-association ownership) (2,387 subscribers)
  • REsides (2,223 subscribers)
  • Northern Arizona Association of Realtors (hybrid brokerage-association ownership) (1,296 subscribers)
  • Athens Area Association of Realtors (hybrid brokerage-association ownership) (1,291 subscribers)
  • Mid Georgia MLS (806 subscribers)
  • Mesquite Real Estate Association MLS (209 subscribers)
  • Pike County Real Estate Association (99 subscribers)
  • Plainview Association of Realtors (hybrid brokerage-association ownership) (73 subscribers)
  • East Central Indiana Board of Realtors (64 subscribers)
  • Texas Listing Service (TXMLS)

MLS PIN, which had 44,600 subscribers in 2023 and is a defendant in a prominent commission suit known as Nosalek, decided not to opt into the NAR settlement, spokesperson Melissa Lindberg told Inman.

“Because of pending litigation, we cannot comment further at this time,” she said.

Bob Kimpland, executive director of Garden State MLS, told Inman it was planning make changes to its MLS system despite not opting into the NAR settlement.

“We are still addressing issues relating to this matter that are of concern to GSMLS,” Kimpland told Inman.

“Please note, however, and as we have already advised our membership, GSMLS will be making revisions to its MLS system and its policies to ensure that our members can comply with their obligations under the NAR Settlement Agreement and New Jersey real estate laws and regulations, including pending legislation that we anticipate will be adopted in the near future.”

Kimpland did not respond when asked which changes GSMLS was planning, but pointed to New Jersey State Legislative Session Bills S3192 and A4454.

The latter “would stipulate “that a seller’s agent is not required to submit any notice to a Multiple Listing Service stating that a seller has authorized the sharing of the compensation for the seller’s agent with cooperating subagents, transaction brokers or a buyer’s agent, or the amount of compensation to any Multiple Listing Service,” according to the New Jersey Legislature’s website.

After being asked why Mid Georgia MLS did not opt into the NAR settlement, Mid Georgia MLS declined to comment.

Central Jersey MLS, Consolidated MLS (Columbia MLS), Liberty Board of Realtors, REsides, Mesquite Real Estate Association, and Pike County Real Estate Association did not respond to requests for comment.

Email Andrea V. Brambila.

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