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Inman’s review of hundreds of MLSs shows that, with notable exceptions, the vast majority of the country’s more than 600 multiple listing services have opted into the National Association of Realtors’ settlement agreements to exempt them from claims that home sellers may have against them. Potential Antitrust Claims.
June 18 is the deadline for Realtor-affiliated and non-Realtor-affiliated MLS to opt in to the deal. In fact, all affiliated MLSs are opt-in and are not required to pay any fees under the terms, unlike non-Realtor MLSs, which must pay directly or through mediation to determine the amount based on an opt-in formula.
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About half of MLSs owned by such brokers have opted in, and some of the companies that have opted out say their rules are different from those that gave rise to antitrust lawsuits. A small, non-real estate brokerage MLS opted in but told Inman it was disbanding.
Non-Realtor MLSs who choose to pay into the settlement fund will pay a total of at least $5,383,800. That amount could increase significantly after the remaining non-realtor MLSs reach settlements through mediation.
Dawn Pfaff, Photo Credit: Home Art Photography by Vasi Studio
My State MLS, a privately held broker-owned MLS with 62,000 subscribers that is not affiliated with NAR, told Inman it would not opt in to the deal, a decision that founder Dawn Pfaff said was “made after Made after careful consideration.”
“It’s important to note that My State MLS never requires compensation from buyer’s agents and always offers a ‘free’ option with every listing,” Pfaff said. “We do not require any type of board membership or mandate that all licensees in an office or brokerage firm join.
“My State MLS provides the only competition to the existing MLS structure, giving agents a viable, non-NAR affiliated option to list properties anywhere they are licensed.
“My state’s MLS does not mandate minimum required damages, fines, or any services or rules that would be considered anti-competitive.”
Pfaff said she is not concerned about any potential lawsuits for not opting in.
“Because we don’t have the same rules or the same circumstances that others are alleging, we’re not concerned,” Pfaff said.
Jeremy Crawford
Likewise, Atlanta-based broker-owned First MLS, which has more than 57,000 subscribers, will not opt in to the deal. First MLS CEO Jeremey Crawford told Inman that FMLS has never had a rule requiring compensation in the MLS, and compensation has never been a required field.
“FMLS was never part of the compensation between sellers and buyers,” Crawford said.
Michael Kagemak
When asked what would happen to MLSs that don’t opt in, Michael Ketchmark, lead plaintiffs’ attorney at Ketchmark & McCreight, told Inman, “If an MLS doesn’t opt in and there’s evidence that it violates our nation’s antitrust laws, we will quickly Take legal action”.
NAR’s proposed settlement, which has received preliminary approval from the court but has not yet received final approval, requires MLS to make certain rule changes.
For example, NAR would eliminate a key rule at issue in multiple antitrust lawsuits against the trade group, the “Engagement Rule” or “Cooperation Compensation Rule,” which requires listing brokers to compensate buy-side brokers for The broker submits the listing application.
All MLSs that choose to participate in the transaction, regardless of real estate agent status, will be required to prohibit the listing agent from providing compensation to the buyer’s agent through the MLS.
Under the settlement, both non-real estate agent and real estate agent-affiliated MLSs must implement the rule changes by September 16, 2024, while the NAR requires real estate agent-affiliated MLSs to implement these rule changes by August 17.
Realtor-Affiliated MLSs opt-in to the settlement by completing “Appendix B – Realtor MLS “Opt-in” Agreement” and receive compensation without paying any fee.
Broker-owned MLSs that opt in by completing their “Appendix D — Non-Real Estate Broker MLS “Opt-In” Agreement” have two options if they want to receive coverage:
- Option 1: Within 120 days of the court’s preliminary approval of the NAR settlement, an amount equal to 100 times the number of calendar year 2023 MLS subscribers as reflected in the T360 Real Estate Almanac will be deposited into an escrow account.
- Option 2: If MLS “believes in good faith” that it is unable to pay the amount required under Option 1, MLS agrees to engage in non-binding mediation with plaintiffs’ attorneys within 110 days of preliminary approval of the agreement.
As of Tuesday afternoon, only 18 of the 602 Realtor-affiliated MLSs had not opted into the settlement, and most of them appear to be small, merged with larger MLSs that opted in, or may have been dissolved, according to information provided by Ketchmark.
At least one MLS, Connecticut’s SmartMLS, issued a press release on Tuesday announcing its decision to elect “to minimize disruption to the market,” but made clear it had “serious concerns” about the deal and would be “actively monitoring” the move. One practice needs to be changed “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 fully controlled by the Association of Realtors and Realtors and is required to proceed in the NAR settlement All practice changes.
At least 18 of the 40 non-real estate brokerage MLSs have opted in, with 10 choosing to pay under Option 1 and 8 choosing to use mediation to determine the amount to be paid under Option 2.
The Real Estate Council of New York’s RLS, which has more than 15,000 subscribers, is not affiliated with real estate brokers and is itself the target of an Antitrust Commission lawsuit, chose Option 2 over Option 1, which would have resulted in a payment of approximately $1.5 million.
“REBNY is in discussions to participate in the NAR settlement,” spokesman Christopher Santarelli told Inman in a statement. “The 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 and would have to pay $2.166 million. This appears to be the largest payment in a non-realtor MLS.
The broker-owned Alaska MLS, which had 2,388 subscribers last year, also chose Option 1.
“Our obligation is equivalent to $238,800,” Alaska MLS CEO Michael Smith told Inman.
Southeast Georgia MLS, which has 170 subscribers in 2023, chose Option 1 and therefore agreed to pay $17,000, but spokesperson Cindy Dell told Inman on Tuesday that “SEGA MLS is disbanding.” SEGA MLS did not respond Follow-up questions were asked as to whether the dissolution was related to reconciliation.
As of June 18, these are the non-Realtor MLSs that have opted in; the option they chose; how much they paid if they chose the first option; and how many subscribers they had if they chose the second option:
- Alaska MLS (Option 1: $238,800)
- BAREIS (Option 1: $736,800)
- Brooklyn MLS (Option 2: 3,635 subscribers)
- New York Central Information Service (Option 2: 1,926 subscribers)
- Central Virginia MLS (Option 2: 6,689 subscribers)
- Great 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: Over 15,000 subscribers)
- Real Estate Information Network (REIN) (Option 1: $889,600)
- Richmond Listing Management Services (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 have not yet opted in:
- My State MLS (62,000 subscribers)
- First MLS (57,472 subscribers as of Dec. 31, according to T360)
- Northwest MLS, publicly stated last month that it would not opt in (33,121 subscribers)
- Hudson County MLS/Real Estate MLS
- MLS Real Estate Information Network (MLS PIN) (44,600 subscribers)
- Garden State MLS (26,854 subscribers)
- Central Jersey MLS (10,448 subscribers)
- Consolidated MLS (3,799 subscribers)
- Freelance Board of Realtors (6,762 subscribers)
- Willamette Valley MLS (3,422 subscribers)
- Tennessee-Virginia Regional MLS (Brokerage Association Mixed Ownership) (2,387 subscribers)
- REsides (2,223 subscribers)
- Northern Arizona Association of REALTORS (Broker Association Mixed Ownership) (1,296 subscribers)
- Athens Area Association of Realtors (Broker Association Mixed Ownership) (1,291 subscribers)
- Central Georgia MLS (806 subscribers)
- Mesquite Real Estate Association MLS (209 subscribers)
- Pike County Real Estate Association (99 subscribers)
- Plainview Association of REALTORS (Broker Association Mixed 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 was also a defendant in a prominent commission lawsuit called Nosalek, decided not to opt out of the NAR settlement, spokesperson Melissa Lindberg told Inman.
“Due to pending litigation, we are unable to comment further at this time,” she said.
Garden State MLS Executive Director Bob Kimpland told Inman that despite not opting to settle with the NAR, it still plans to make changes to its MLS system.
“We are still addressing GSMLS’ concerns related to this matter,” Kimplain told Inman.
“However, please note that, as we have informed our members, GSMLS will be making revisions to its MLS system and its policies to ensure that our members are able to comply with their obligations under the NAR Settlement Agreement and New Jersey real estate laws and regulations, including what we anticipate will be Pending legislation that will be passed in the near future.
When asked what changes GSMLS plans to make, Kingplan did not respond, but pointed to New Jersey Legislative Assembly bills S3192 and A4454.
The latter “will provide” that the seller’s agent is not required to submit any notice to the Multiple Listing Service indicating that the seller has authorized the seller to share the seller’s agent’s compensation with a cooperating subagent, transaction broker or buyer’s agent, or in accordance with the New Jersey Legislature’s Website, “Amount of Compensation for Any Multiple Listing Service.”
Central Georgia MLS declined to comment after being asked why it did not choose the NAR settlement.
Central Jersey MLS, United 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.
Send an email to Andrea V. Brambila.
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