Broker fees, a hotly debated element of U.S. real estate, face potential disruption as a significant jury trial unfolds in Kansas City, Missouri. As one of two antitrust class-action lawsuits against the nation’s largest brokers and the National Association of Realtors, this critical case can reshape how Americans purchase homes and alter the trade group’s power over the industry.

Anywhere Realty and Re/Max, two defendants, have already reached settlements in both lawsuits by scaling back their associations with the NAR and paying a combined $139 million in damages. The U.S. Department of Justice is reportedly considering antitrust action against the NAR, further intensifying the stakes.

The crux of the matter is broker fees, explicitly focusing on the seller’s payment to the buyer’s agent. NAR guidelines stipulate that the seller covers the cost, which is split between the seller’s real estate agent and the buyer’s agent. Under these rules, sellers must include a fee offer in their listings, even if it amounts to zero. This offer is visible to buyers’ agents but typically concealed from potential buyers.

The plaintiffs, representing sellers of more than 260,000 homes across Missouri, Kansas, and Illinois, assert that this system effectively amounts to a conspiracy that artificially inflates home prices. In 2020, residential real estate commissions in the United States exceeded $85 billion, as indicated in a prior antitrust investigation conducted by the DOJ. Despite the NAR’s recent claims that fees could be as low as zero, studies show that these fees remain consistently uniform. The lead plaintiff attorney in the Missouri case described the commission system as “collusion.”

Over the years, critics have voiced concerns about the NAR and this system inflating home prices while misaligning the interests of buyers and their agents. It’s argued that agents earn more if buyers pay more, creating a situation that lacks consumer-friendliness. While the internet has revolutionized numerous marketplaces in the United States, resulting in cost reductions, the home buying process has seen fewer changes. Housing Wire data reports that broker fees have remained relatively constant, averaging around 5% even with the increased prevalence of online listings. 

Addressing these claims, an NAR representative argued that their rules and system benefit consumers and the real estate market. They underscored the negotiable nature of compensation and the fluctuating commissions tied to market conditions. The NAR cautioned that altering these rules might jeopardize consumers’ equal access to homes for sale, affordability, and the housing market’s stability. However, the NAR’s influence still poses a significant obstacle, and the trial outcomes may not lead to substantial structural changes. Advocates have called for a potential decoupling, in which buyers directly pay their agents, possibly incorporating that fee into home financing.

The future of the real estate industry could pivot based on the trial’s verdict, which is anticipated to conclude early next month. These proceedings are poised to reshape the landscape of real estate and have far-reaching implications for homebuyers and the industry.