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Bright MLS, the nation’s second-largest multiple listing service, is breaking with a controversial National Association of Realtors policy that requires listing brokers offer commissions to buyer brokers in order to submit listings to Realtor-affiliated MLSs.
On Wednesday, Bright — with more than 100,000 subscribers in six states in the mid-Atlantic region — announced on its website that starting Aug. 9 it would allow listing brokers and agents to enter any amount in a listing’s cooperative compensation fields, including zero. Previously, the fields required an offer of compensation of at least one cent.
“We are making this small change to underscore the complete flexibility of Bright subscribers to engage in transparent negotiations with their clients,” the announcement reads.
“Bright wants to confirm subscribers’ flexibility and the transparency and clarity of the cooperative compensation being offered through Bright’s MLS. Bright has always offered flexibility and has never specified a cooperative compensation amount.
“With this update, a listing agent will continue to be able to enter the cooperative compensation amount agreed upon with their seller client, from zero and up, and continue to negotiate compensation at their client’s direction.”
Bright’s announcement notes that the contracts and forms its subscribers currently use will continue to work the same way and that subscribers “will continue to be able to make impartial, blanket offers of cooperative compensation to every buyer’s broker. This is not going away.”
Bright’s rule change, almost certainly the first among Realtor-affiliated MLSs, raises the question of whether other such MLSs will follow suit. The move comes as antitrust lawsuits attacking NAR’s commission policy are heating up.
Two bombshell lawsuits filed in 2019, known as Moehrl and Sitzer/Burnett after their lead homeseller plaintiffs, have both gained class-action status and the latter is currently set to go to trial in October. Bright is one of 20 MLSs named as a co-conspirator in the Moerhl suit, though no MLS has been named as a defendant in either of the two bombshell suits.
At the end of June, MLS PIN, a broker-owned MLS based in the Northeast, settled another antitrust suit (Bauman/Nosalek) filed by homesellers who objected to the rule, in part by agreeing to change a rule similar to the NAR commission rule. MLS PIN’s rule change will make the offering of compensation to buyer brokers optional, similar to changes broker-owned Northwest MLS has adopted.
Going by NWMLS’s experience, Bright’s move is unlikely to change how or how much buyer agents in its market area get paid. At NWMLS, between October 2019 (when offering commissions to buyer brokers became optional) and March 2022, 99.2 percent of NWMLS listings continued to offer a buyer broker commission (flat from 99.3 percent before the rule was eliminated). Virtually all, 94.5 percent, offered a cooperative commission above 2 percent.
NWMLS is not affiliated with NAR. Bright, like the vast majority of the 522 MLSs in the U.S., is Realtor-association-owned, counting 43 local Realtor associations as shareholders. Local Realtor associations are governed by NAR rules. If Realtor associations don’t follow NAR rules, they risk losing their charter. If Realtor-affiliated MLSs don’t follow NAR rules, they risk losing their NAR-provided professional liability insurance.
“We don’t believe this will impact Bright’s relationship with NAR,” a Bright MLS spokesperson told Inman in an emailed statement. “Bright is making an independent business decision responsive to the needs of our subscribers – and the consumers they serve.”
Asked whether Bright MLS is the first Realtor-affiliated MLS to make this change and whether the change has anything to do with the commission-related antitrust lawsuits, Bright did not respond.
Inman has reached out to NAR for comment and will update this story if a response is received.
NAR’s Handbook on Multiple Listing Policy requires that when a property is entered into the MLS, “participants make blanket unilateral offers of compensation to the other MLS participants and shall therefore specify on each listing filed with the service the compensation being offered by the listing broker to the other MLS participants.”
The handbook adds, “Multiple listing services shall not publish listings that do not include an offer of compensation expressed as a percentage of the gross selling price or as a definite dollar amount, nor shall they include general invitations by listing brokers to other participants to discuss terms and conditions of possible cooperative relationships.”
Bright’s current rule regarding commission offers states, “Each listing must include the compensation unconditionally and unilaterally offered to a Cooperating Broker. While the offer must be a positive value, Bright does not set or suggest compensation values or the cooperative division of compensation.” The requirement that the offer be a “positive value” will presumably change come Aug. 9.
In January 2022, real estate giant Anywhere (formerly, Realogy) publicly called on NAR to end the requirement that listing brokers and buyer brokers share commissions, pushing instead for the policy to be optional. Anywhere’s position is notable because the company is a defendant in all three of the major commission lawsuits, along with fellow real estate franchisors Keller Williams, HomeServices of America and RE/MAX.
All of the franchisor defendants have a presence on Bright’s board of directors through their franchisees, making up about half of the 29 directors.
Editor’s note: This story has been updated with a comment from Bright.