On July 31, the final day that the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) accepted public comments on competition in the real estate industry for their current evaluation period, the National Association of Realtors (NAR) took the opportunity to accuse real estate tech giant Zillow of causing consumer confusion through its Premier Agent ad program and its signature home value estimates, “Zestimates,” and advised the regulators to monitor the company’s platform for anticompetitive behavior.
Yet NAR’s own member brokers and agents have websites that engage in some of the same practices the trade group faulted Zillow over.
Both NAR and Zillow loom large in the industry and, when it comes to real estate competition, they both support the current multiple listing service (MLS) structure. But the two entities have sometimes been at odds over the years, and NAR’s latest jab at Zillow has the potential for real consequences at a time when the federal government has taken a renewed interest in real estate antitrust.
The DOJ and FTC held a joint workshop on real estate competition in June in the run-up to the expiration of a longstanding consent decree affecting real estate websites. The decree was put into place in 2008 after the DOJ sued NAR for alleged antitrust violations. Its expiration has some leading industry experts concerned about what a less-regulated real estate industry will look like, while others have used the government’s attention as a chance to air complaints against anticompetitive behavior they see in the industry.
“Zillow’s Premier Agent advertising program wherein agents purchase from Zillow the exclusive right to advertise in a specified market on the Zillow platform leads to consumer confusion,” wrote Katie Johnson, NAR’s general counsel, in a letter submitted to the FTC website Tuesday.
“Consumers searching for homes on Zillow see agent contact information next to a particular listing and are led to believe that agent is the listing agent. They click to seek more information on the listing and are then subject to marketing from an agent who is not the listing agent and has no additional information on the listing the consumer is interested in.”
The trade group noted that the non-Realtor affiliated Real Estate Board of New York (REBNY) had made a similar argument and that New York state regulators were looking into Zillow’s Premier Agent program as well as ad programs on other listing sites.
NAR’s broadside at Premier Agent is notable in part because the program makes up the vast majority of Zillow’s revenue, accounting for some 71 percent of its total $1.1 billion in revenue, per last year’s earnings. The program provides real estate agents with online ad placement on Zillow in exchange for subscription fees.
NAR also took aim at Zillow’s estimated home values, Zestimates, saying they create “consumer confusion” in regards to property values. “Consumers largely do not understand the wide margin of error in Zestimates and this can create conflicts when pricing a home for sale or for a buyer determining what price to offer,” Johnson wrote.
“While advertising platforms offer consumers an easy and entertaining home shopping experience, as the platforms add features and services they bear scrutiny over potential anti-consumer impacts. Antitrust regulators should be monitoring advertising platforms for market power and anticompetitive behavior,” she continued.
In an emailed statement, Zillow spokesperson Kate Downen said:
“NAR’s commentary on consumer confusion is disingenuous and inconsistent throughout their document, and does a disservice to homebuyers across the country — including the almost 200 million unique users of Zillow Group sites.
“Consumers are smart, and for over a decade they’ve told us they value the choice and opportunity to decide whether to contact a buyer’s agent who exclusively represents their interests, or to work with an agent who has a fiduciary responsibility to the seller. That’s why we give consumers the option to contact both, and clearly mark the listing agent and buyer’s agents.
“If there’s something we can agree on, it’s that real estate agents provide a lasting value to consumers as they navigate the complexities of buying and selling homes, and we don’t see that changing.”
The way agents are displayed next to listings can confuse some consumers, but that may be something that the vast majority of listing websites — whether run by a broker or a third party — are guilty of.
Downen noted that Zillow’s display of the listing agent is “very clear,” while it is not clear on Internet Data Exchange (IDX) sites or Virtual Office Websites (VOWs) — the thousands of individual listing websites operated by agents and brokers that NAR regulates through Realtor-affiliated multiple listing services (MLSs).
IDX and VOW sites are not required to show listing agent contact information next to listings and such websites nearly always either show the contact information of the agent or broker who owns the site or display a lead form that goes to the owner next to all listings on the site, whether they are the listing agent or broker or not.
For example, popular brokerage website Redfin (which runs on IDX and VOW data feeds from MLSs) offers consumers the ability to schedule a tour, ask a question or call and those inquiries go to Redfin. The listing agent’s name and brokerage name appear on the listing page if users scroll down a bit, but the site displays no contact information for either. The sidebar with options to contact Redfin follows users as they scroll down the page and appears next to the listing agent and brokerage’s name.
On Zillow’s site, three advertising Premier Agents appear under the listing agent in a sidebar, but the listing agent’s name and contact information appear three times on the listing page.
For instance, here’s is a listing for 2414 Roosevelt Drive in Alameda, California on Redfin’s site, with the listing agent information circled in red:
Here is that same listing on Zillow’s site, again with the listing agent information circled in red:
Some brokerage websites display the listing brokerage’s name in faint text at the bottom of a listing page, but don’t display the listing agent’s name at all.
Moreover, some brokerage websites such as Redfin (see above), also display home value estimates next to listings.
Asked whether NAR believes brokerage websites also cause consumer confusion given that IDX and VOW sites engage in the same behavior that NAR condemns in its letter to the FTC and DOJ, Johnson said, “All MLS participants agree to abide by the MLS’s comprehensive IDX and VOW rules, which include many more rules than how the listing broker is displayed, to the benefit of consumers.
“Realtors commit to adhere to these rules because they are reasonably crafted to create advertising websites that comply with state law and provide accurate information to consumers. And of course, the [Realtor] Code of Ethics requires Realtor advertising to portray a ‘true picture.’ We understand that Zillow is not bound by any MLS rules or a code of ethics.”
In regards to Zestimates, Johnson linked to Zillow’s site and said, “[T]he fact that Zillow provides extensive scripts for agents on how to speak to clients about them seems to support the notion of consumer confusion.”
NAR declined to comment further.
Much of NAR’s six-page letter was devoted to points the trade group had already made publicly, both in a white paper and at the DOJ-FTC workshop. Johnson reiterated that “the residential real estate industry is robustly competitive with multiple business models offering consumers the prices and services to fit their needs” and that listing information is widely and freely accessible to consumers and there is “no need” to continue the consent decree.
She also reminded the agencies of the work that real estate brokers put in to secure listings and create listing data as well as brokers’ liability for the accuracy of that data.
In response to calls to open listing data, Johnson warned that forcing brokers to provide unrestricted access to MLS data to anyone could disincentivize brokers from creating that data in the first place, which “would ultimately harm consumers.”
“Appropriation of a commercial entity’s data, work product, or intellectual property for exploitation by another commercial entity is not justified,” Johnson said.
Moreover, she noted that ad platforms like Zillow’s Premier Agent have not reduced costs for consumers or agents.
“While advertising on online platforms has added a layer of cost for brokers and agents, that technology has not reduced the human cost of managing a real estate transaction,” she said.
“As such, these platforms act as a super-intermediator in the real estate market and not a disintermediator as certain technology has in other service industries, such as travel.”