As promised, here is the latest update regarding the $418 Million NAR Lawsuit Settlement and how it will affect real estate operations in WA State. As the deadline to opt in to the NAR Lawsuit Settlement approaches, the Northwest Multiple Listing Service (NWMLS) announced last week that they have voted to NOT opt-in to the settlement.

The NWMLS is a member-owned organization that serves over 35,000 brokers in WA State where 26 of the 39 counties in WA, including Snohomish, King, Skagit, Kitsap, Whatcom, and Pierce counties share their listings. Unlike many MLSs across the country, the NWMLS is not owned by the National Association of Realtors (NAR), giving them a choice to opt in to the lawsuit settlement which would require payment and adhering to specific business practices. With transparency a proven cornerstone of their mission, the NWMLS felt secure and confident in the structure and processes they have in place. Their intent has always been to elevate consumer protection and provide an open and fair marketplace, which led to the decision to not opt in to the settlement agreement.

Besides payment, there are 4 major mandates resulting from the settlement agreement that NAR-owned MLSs and non-NAR MLSs that opt in will be required to adapt to in August 2024.

1. The requirement to provide Buyer Brokerage Compensation (BBC) in all listings will be removed.
2. Brokers will be required to enter into a written Buyer Agency Agreement (BAA) with Buyers which clearly outlines compensation before rendering Buyer Brokerage Services.
3. Listing Agreements will de-couple the listing brokerage compensation from the buyer brokerage compensation, outlining clear and separate offerings of compensation for each side of a transaction.
4. MLSs will be prohibited from publishing offers of buyer brokerage compensation.

The majority of the requirements mandated by the settlement had already been established by the NWMLS. In 2019, the NWMLS removed the BBC requirement and started to syndicate the published BBCs to third-party sites, such as Zillow, for full consumer transparency. In 2022, the listing agreement was amended to reflect de-coupled compensation and the BBC was added to the front page of the Purchase and Sale Agreement (PSA). In Jan 2024, WA State law was put into place requiring all brokers to enter into BAAs, which are called Buyer Brokerage Service Agreements (BBSAs) in WA. This legislative change was enacted with support from the NWMLS who advocated for the new laws and they re-built their forms to support this elevated level of transparency.

The NWMLS was able to choose to opt in, which would require payment towards the settlement and adhering to the fourth process change of removing published BBC from listings on the database. Due to the NWMLS’s historical innovation and leadership surrounding representation, compensation, and transparency, which has been an example for the rest of the country, they voted to not opt-in. In fact, they concluded that not publishing an offered BBC, whether the offering is zero, a flat rate, or a percentage, would reduce consumer transparency.

Further, not publishing what a seller is offering or not offering, could lead to deceptive practices that could harm consumers. The NWMLS shared this in their press release announcing their decision.

“NWMLS will not “opt-in” to NAR’s proposed settlement agreement. NWMLS’s rules and forms, together with the revised Agency Law, provide for consumer-friendly brokerage relationships. Sellers negotiate how much to compensate the listing firm and decide whether to offer to contribute toward the buyer’s broker compensation and the amount of any such offer. Buyers agree how much to pay their own brokers at the outset of their relationship, and can then negotiate for the seller to help cover that cost as part of the purchase. 

NAR’s proposed settlement agreement largely duplicates the rules and practices in place in NWMLS’s service area for several years – with one notable exception. The settlement agreement eliminates compensation transparency for buyers and restrains sellers’ choice by prohibiting sellers from making offers of compensation through the MLS. Instead, the settlement agreement allows for offers of compensation “off MLS”, where that information is hard to find and not available to all buyers and brokers. That change is a step in the wrong direction and is detrimental to consumers and brokers alike.

NWMLS strives to provide consumers with all relevant information about a listed property to promote efficiency, competition, and an open and free market. NWMLS’s rules and forms broaden, not limit, consumer choice and do not favor any brokerage service model or compensation structure. NWMLS allows the market to operate unimpeded by MLS rules.

NAR’s removal of compensation transparency from the MLS pushes consumers and brokers to make secret deals “off-MLS”, inviting deceptive practices, discrimination, and unfair housing. Depriving buyers of information about the transaction risks harming buyers, especially those buyers who are already disadvantaged, including first-time home buyers and members of protected classes. Of course, prohibiting offers of compensation in the MLS also unnecessarily restrains the seller’s choice and absolute right to offer compensation to a brokerage firm representing the buyer.”

As I move forward in my business practices and adhere to the NWMLS leadership, I am proud to be a broker in WA State. Our corner of the world has put great thought, effort, and execution towards elevating the consumer experience in a real estate transaction. We have navigated changes, tackled open communication head-on, and strive to bring value to the consumer at every turn. This lawsuit has created a lot of noise and confusion; it is important to understand how WA stands out from the rest of the nation.

As headlines soar and the media bends the narrative, you can count on me to help keep you informed so you can accurately grasp how the progression of the industry affects you. I am happy to report that how we are conducting business here will be in line with the innovation that the NWMLS already has in place. We will watch the rest of the country catch up and proudly lead that charge. Stepping out in front seemed bold at first, and has proven to be the right course of action. Due to the insightful, considerate, and thoughtful guidance of the NWMLS, we will continue to prioritize full transparency and be able to focus on providing the best service possible for our clients.

If you have any additional questions or want to discuss this topic, please reach out. It is always my goal to help keep my clients well-informed and empower strong decisions. Here’s to moving forward with excellent practices in place to help consumers safely and securely buy and sell property.

Effective January 1, 2024, the statute in Washington that governs real estate brokerage relationships (RCW 18.86) otherwise known as the “Agency Law” – was significantly revised. The revisions modernize the 25-year-old law, provide additional transparency and consumer protections, and acknowledge the importance of buyer representation.

KEY REVISIONS
For decades, real estate brokerage firms were only required to enter into written agency agreements with sellers, not buyers. The Agency Law now requires firms to enter into a written “brokerage services agreement” (agency agreements) with any party the firm represents, both sellers and buyers.

This change is to ensure that buyers (in addition to sellers) clearly understand the terms of the firm’s representation and compensation, much like a listing agreement. The new agreements are called Buyer Brokerage Service Agreements (BBSA) and they are to be initiated in writing prior to or upon rendering real estate brokerage services, such as showing homes.

The services agreement with buyers must include:

• The term of the agreement (with a default term of 60 days and an option for a longer term);
• The name of the broker appointed to be the buyer’s agent;
• Whether the agency relationship is exclusive or non-exclusive;
• Whether the buyer consents to the individual broker representing both the buyer and the seller in the same transaction (referred to as “limited dual agency”);
• Whether the buyer consents to the broker’s designated broker/managing broker’s limited dual agency;
• The amount the firm will be compensated and who will pay the compensation; and
• Any other agreements between the parties.

Clearly communicated expectations between the buyer and their broker are an advantage to the buyer. Every party deserves representation and it has been a long time coming for the law to pay as much attention to buyers as it has to sellers. Having competent representation on both sides of a transaction makes the process go smoother and reduces liability during and after the transaction. After all, everyone deserves competent representation during one of the biggest transactions they will partake in.

These changes are intended to elevate transparency in agency relationships for the consumer and encourage more detailed conversations about representation, compensation, and the overall home buying process with the broker they chose to align with. This will also cause sellers to gain a better understanding of how buyer brokers are compensated.

What a seller chooses to offer a buyer broker could have a positive effect on their return. The only way a buyer can compensate their broker is with liquid cash or negotiating with the seller within the purchase and sale agreement when their BBSA doesn’t match the seller-offered compensation for the buyer broker. If their BBSA matches what the seller is offering in the listing for the buyer broker compensation, then the buyer does not have to rely on the prior.

Compensation offered in a listing that mirrors the BBSA will allow a buyer to solely focus on the offer price of the home as they will not have to calculate the math of the compensation against their down-payment funds, as lending regulations do not allow for broker compensation to be financed. If a buyer has to set aside funds for compensation it would likely reduce their down payment amount which would increase their monthly payment and make them more price sensitive. It will also eliminate the compounding effect of compensation and the offer price being simultaneously negotiated.

I have always run my business in a very detailed fashion and pride myself on having a deep knowledge of the laws and the forms, and these changes are paramount. As an independent contractor affiliated with Windermere Real Estate, the leading company in our region, it is up to me to dig into the research and gain understanding to help guide my clients through these advancements in a compliant and service-oriented fashion. There are even aspects of these new laws that I have been practicing before the changes, as transparency is a cornerstone of my value to my clients.

These are the biggest changes we have seen in our industry in over two decades. Be aware that not all brokers will adapt as quickly or accurately. We are already seeing a gross difference between the informed and not informed; who one chooses to work with matters! If you have any further questions about how these new laws affect you, please reach out. If you are considering a move, I am committed to navigating the process with the utmost compliance and my client’s success at the forefront.

REVISED PAMPHLET: The pamphlet entitled “Real Estate Brokerage in Washington” provides an overview of the revised Agency Law.
REVISED AGENCY LAW: Substitute Senate Bill 5191 sets forth the revised Agency Law in its entirety.

Last week, my office hosted our 16th Annual Economic Forecast Event featuring Matthew Gardner. Matthew is a sought-after economist focused on the national and local economies and has a deep understanding of the housing market across the country and right in our own backyard. He is an economic advisor for the State of Washington, Governors Council, lectures on real estate economics at the University of Washington, and is found quoted in various media outlets throughout the year as a respected expert. He is certainly a trusted real estate advisor that I look to to stay informed to help educate my clients.

The event was virtual and I have the recording and his PowerPoint in a PDF that I am happy to share with you, please reach out if you would like me to email it to you. So much was shared in his 60-minute presentation that was focused on the national economy and a deep dive into both King and Snohomish Counties, followed by Q & A. I can’t quite cover it all here, but here are some highlights!

1. Inflation levels have dropped from their peak and are now tracking with more normalized levels. This has caused interest rates to start to drop, which is a trend he sees continuing in 2024.

2. The U.S. unemployment rate measured at 3.8% at the end of 2023 and is forecasted to rise ever so slightly and remain under the long-term average of 4.5%. In King and Snohomish Counties the unemployment rate averaged 4% at the end of 2023.

3. There is a major labor gap in both King and Snohomish Counties, with job postings heavily outweighing labor supply. Biotech is the darling of the moment which will balance out the IT side in the overall jobs picture.

4. Interest rates are predicted to gradually decrease throughout 2024 as inflation softens. The Fed will slow-play these reductions to get them right, so they do not have to raise them again.

5. The Tri-County area of Snohomish-King-Pierce Counties had massive organic population growth from 2020-2022, much of which was international vs. domestic.

6. Homeowner equity averages 60% in King County and 57.5% in Snohomish County. According to the median price in King County in December 2023 that is $511,200 and $391,000 in Snohomish County. Homeownership proves to have the strongest impact on household wealth.

7. There will NOT be a bubble in the housing market! Given that prices remained stable in 2023 amongst the highest interest rates we’ve seen in two decades along with inflation at a high, the housing market has proven to be a fortuitous economic marker. Rates and inflation are both improving, which will bode well for home values. Our biggest challenge is the lack of inventory and affordability.

8. Price growth in King and Snohomish Counties was flat year-over-year (2022 to 2023) after massive growth from 2020-2022, which was positive given the correction in prices and rise in interest rates. Prices are forecasted to modestly increase in 2024. Tight inventory and continued buyer demand will drive this growth while interest rates temper.

Please reach out if you would like to learn more and receive the documents and recording. Also, you can count on me to follow the trends, statistics, and rhythm of the market throughout the year. It is my goal to gain knowledge and understanding so I can help keep you informed. This level of service helps empower my clients to make thoughtful, sound decisions when navigating their investments and big life choices.