Main Menu
Buyer Agent and Subagent commission fields have been removed from the MLS.
Stay informed with the latest updates and essential details regarding the recent NAR settlement. As a valued member of the South Central Wisconsin MLS, we want to provide you easy access to necessary information and resources. We also want to keep all of us out of trouble. Anyone, including individual agents, can be sued if the settlement requirements are not followed. We are all in this together!
Important Dates
|
| We’re excited to share our new animated short, MLS Changes as a Result of the NAR Settlement (A Walk in the Park). This brief video presents MLS-specific adjustments to help you prepare for implementation before August 16th. |
The following changes have been made within the SCWMLS:
The NAR settlement is very clear that MLSs can no longer be a vehicle to communicate offers of compensation. For the protection of all, do not seek alternate ways (i.e. within photos, associated docs, showing instructions, hyperlinks within remarks, etc.) to include compensation offers within the MLS. If your seller is offering to pay the buyer’s agent fee, you can market this outside of the MLS. For example, you can include compensation for your listings on your agent or firm website, on the for-sale sign, within social media posts, on a flyer at the property, etc.
Click here for directives on how to communicate seller concessions within the MLS.
Click here for information on the new showing requirements.
Q: Would it be okay to add a comment in remarks that the seller is offering a 3% concession to buyer for buyer fees at closing while not specifying it as commission?
A: If any of the 3% is intended to go to the buyer’s firm/agent, then putting this in the MLS would be a violation of the NAR settlement terms. On the listing contract, concessions are a separate line item under the Marketing section. Anything identified under the Commission or Compensation to Others sections is not a concession, and may not be referenced in the MLS. In addition, concessions must be entered as a dollar amount. Percentages are not allowed in the MLS.
Q: For comp purposes, can the commission that was paid be entered in the Concessions field after a listing closes? What about in the broker remarks?
A: Commission/compensation may not be published anywhere in the MLS, even after closing. Appraisers or agents who wish to use the property for comp purposes are encouraged to contact the agents involved in the transaction for this information, so open & timely communication is key. Click here for a NAR article on this topic. The Concessions field may only be used to reflect seller-offered concessions that were not conditioned on payment to the buyer’s firm.
Q: I will be including commission offerings on my website. Can I include a link to my website within the MLS public remarks and/or the broker to broker remarks?
A: No. The NAR settlement prohibits any links from the MLS that display an offer of compensation to a cooperating/buyer’s broker. Furthermore, the settlement stipulates that the MLS may not support any non-MLS mechanism for Participants/Subscribers to make offers of compensation to buyer agents. Historically, there has been no need for an agent to visit another agent’s website for information about a property, so an argument could be made that the primary reason for encouraging agents to visit your website via the MLS would be to direct them to the commission offering. In an effort to limit liability for the MLS and our members, any reference (link or otherwise) to a website that displays commission is prohibited within the listing data fields.
Q: Is it still okay to indicate within the MLS remarks that there are fees a buyer or buyer’s representative would need to pay at closing, such as a management fee?
A: Yes, as long as the fees referenced are not conditioned on the payment TO a cooperating/buyer’s broker, they can continue to be included.
Q: ShowingTime currently allows agents to load Listing Attachments that are automatically sent to showing agents once a showing appointment is requested. Can these extra documents be used to communicate commission offers? What about using email or text messages from within the ShowingTime platform to communicate commission offers?
A: No to both. Just as associated documents, text messaging, and emails in Paragon cannot be used for this purpose, Listing Attachments, text messaging, and emails in ShowingTime cannot be used for this purpose either. The language via the NAR Settlement is as follows: The MLS cannot create, facilitate, or support any non-MLS mechanism (including by providing listing information to an internet aggregator’s website for such purpose) for Participants, Subscribers, or sellers to make offers of compensation to buyer brokers or other buyer representatives. As we support ShowingTime as an integrated MLS product, ShowingTime cannot be utilized to communicate offers of compensation.
Q: Can I rely on being paid the commission that was offered in the MLS if the offer was accepted prior to August 17th?
A: Yes. If the offer was accepted prior to August 17, the commission that was listed in the SCWMLS at the time of acceptance will be required to be paid.
Q: Can a listing broker communicate offers of compensation on a broker website which has an IDX or VOW feed from the MLS?
A: Yes, MLS Participants may augment MLS data or data feeds with offers of compensation to buyer brokers or other buyer representatives for only listings of their own brokerage.
(Source: NAR’s Q&A #42)
Q: Since compensation has been removed from the MLS, is procuring cause still relevant?
A: Offers of compensation can still be communicated and agreed to off-MLS. Agents may utilize compensation agreements to define what is required to earn a commission. Procuring cause may still be relevant for an arbitration award determination for contractual disputes.
Q: Can the MLS be used to communicate that a seller is offering no payment to a buyer’s agent?
A: No. To limit liability, any reference to compensation ($0 or otherwise) is prohibited.
Q: If an agent will be showing a property that is listed by their firm, but they are not personally the listing agent, is a written buyer agreement required?
A: To minimize risk, it would be safest for the showing agent to have a written buyer agreement in place. This is something agents may be tested on by attorney firms, so it is best to err on the side of caution.
Our members offer more than transactional support—they guide clients through some of life’s most important decisions. With recent industry changes, now is a great time to emphasize the value you bring. We’re pleased to share two recent NAR resources that highlight the range of services REALTORS® provide and the expertise behind every transaction.
179 Ways Agents Who Are REALTORS® Are Worth Every Penny of Their Compensation
105 More Ways REALTORS® Are Worth Every Penny of Their Compensation
Class Notice to Home Sellers
Consumers will be notified of the NAR settlement via the “class notice” beginning August 17. Class notice informs class members of their rights, options, and deadlines to exercise those rights and options under the proposed settlement. Notices will be distributed by mail and electronically. Members should refrain from advising consumers on the class notice, but rather direct them to NAR’s settlement website for consumers at https://www.realestatecommissionlitigation.com/. They can also reach out to the settlement administrator at 888-995-0207. Access NAR’s video on what class notice means for REALTORS® here.
Existing Policy Letters
As stipulated in the settlement, a listing firm must conspicuously disclose to sellers, and obtain seller approval, for any payment or offer of payment that the listing firm or seller will make to another firm acting for buyers. Therefore, as of August 17, any existing blanket compensation agreement, such as a typical policy letter, will be in violation of the terms of the settlement, as it would have been entered into before the required disclosure and approval per transaction. More information can be found here.
Existing Listing Contracts and Buyer Agency Agreements
For listing contracts and buyer agency agreements with a mandatory use date before August 15, 2024, you can utilize the WRA’s Compensation Disclosure (WRA-CD). Once signed and dated, your contract will be in compliance with the Settlement Agreement. This form is available to WRA members via zipForms or in the WRA’s Forms Library.
Most existing listing contracts and buyer agency agreements do NOT need to be amended, with the following exceptions:
Buyer Agency Exception: If you have an existing buyer agency agreement where the commission is identified as “whatever is offered in the MLS,” “whatever the listing firm is offering,” or some other open-ended language, you MUST amend your buyer agency agreement to have a commission amount that is objectively ascertainable (e.g. percentage of the purchase price, specific dollar amount, etc.). Use the WB-47 Amendment to Buyer Agency or Tenant Representation Agreement to amend your contract. This form is available via zipForms or in the DSPS Real Estate Contractual Forms Library.
Listing Contract Exception: The preprinted terms of the WB listings do not require a firm to make an offer of compensation on the MLS, so the majority of listings will not need to be amended. If an existing listing contract was modified to require a firm to offer compensation in the MLS, then the listing would need to be amended with a WB-42 Amendment to Listing Contract. This form is available via zipForms or in the DSPS Real Estate Contractual Forms Library.
New WRA and WB Forms are LIVE in zipForms 7/30/24: The new WRA forms and WB forms (optional use date 7/1; mandatory use date 8/15) are now available in zipForms. They can also be accessed via the WRA Forms Library or through the DSPS Real Estate Contractual Forms Library.
New WRA Forms Videos! The WRA has released a series of informative videos about the post-settlement consequences to your Wisconsin real estate practice, including changes to the WB forms, new ways to offer compensation off the MLS and structure a compensation agreement, revisions to WRA and WB forms based on the new written buyer agreement requirement, and more. You can view these videos by logging in to the Antitrust Resources Page for WRA Members.
List of Updated Forms:
For more information on the forms revision process and content changes within the forms, please read the July 2024 WRA Legal Update, “The WB Forms They Are A-Changin”.
Watch the WRA Antitrust Resource Page for additional educational posts.
Landlord Tenant Forms: Given recent litigation in the landlord tenant realm, the WRA has updated the WRA Residential Lease, WRA Rental Contract, and the WRA Rental Notice. For more information, see Debbi Conrad’s summary regarding changes at https://email.wra.org/legal-news-7.1.24.
Need Help?
Our support team is here for you. Contact Us for any questions or assistance.
Thank you for being a part of the SCWMLS community. We’re committed to keeping you informed and supported through this transition.
