Concessions, Part II

Jun 4, 2024 Michael Wurzer

A few months ago, I wrote a post called Whether and How to Implement the Seller Concession Exception in the NAR Settlement, in which we said that (1) the RESO Data Dictionary fields regarding concessions are for tracking concessions on sold listings, not active listings, and so those fields are not applicable, which RESO subsequently confirmed, (2) MLSs might choose not to add any fields for concessions on active listings (as opposed to sold listings, where many MLSs already have concession fields); and (3) if they do add fields to active listings, we recommended adding two fields, an amount and type ($/%).

Over the last few weeks,there have been several announcements related to this topic, and so I thought an update post could be useful. Most directly relevant, two of the largest MLSs in the country, California Regional MLS (CRMLS) and Bright MLS, announced that they’ve added or are adding fields to track concessions on active listings. Click through on the links to read about the specific details from each MLS, because they’re slightly different in both terminology used and the workflow. Common to both, however, is that each include a numeric field for the amount of concession as well a field for the type of concession ($ or %).

Another recent development was that Northwest MLS announced that it was not going to opt into the proposed NAR settlement.  Again, please read the full announcement at the link provided to get all the details, but a key point made by Northwest MLS is that “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.”

This quote from Northwest MLS’s announcement is directly relevant to a recent Real Estate News article about a couple of different companies trying to aggregate offers of compensation off MLS.  The article may be paywalled (I’m not sure) but, if you can, I encourage you to read it, and I’ll take the liberty of quoting from Jack Miller of T3 Sixty at the end of the article:

Just because you can create a platform for sharing compensation details doesn’t mean you should, noted Jack Miller, CEO of T3 Sixty. (Note: T3 Sixty and Real Estate News share a founder, Stefan Swanepoel.)

“People who are trying to work around the intention of the NAR settlement and the DOJ are really running a risk of further antitrust claims,” Miller said. “And I would say it’s unnecessary. What a seller and listing agent can do is they can say concessions are available to the buyer.

(Emphasis added.) Related to the highlighted part of Jack Miller’s quote regarding concessions, I’ll add that Northwest MLS also announced that they’ll be revising their forms “to ensure that sellers are aware of an option that currently exists when listing a property for sale. In some instances, a seller may be prepared to pay compensation to a buyer broker, but may not be willing to offer a specific amount of compensation when listing the seller’s property for sale. A seller may instead ask that the buyer include any requested amount of compensation payable to the buyer broker in the buyer’s offer. The seller can agree to that amount or negotiate, just like any other term of the agreement.” This sounds similar to the field CRMLS is adding called “Seller Consider Concessions?” with yes and no as possible values, simply to indicate that the seller will consider offers from buyers contingent on the seller making a concession to the buyer in the amount of the buyer broker fees.

As outlined in my earlier post, there’s no requirement for an MLS to add any concession fields to the MLS and it could be advantageous to wait and see how sellers and buyers actually use fields like those discussed above. Will a question like “Seller Consider Concessions?” be enough? Will sellers want to pre-announce a concession amount or percentage on their listing?

I’ll end with a shameless plug here that, for FBS customers, one of the great advantages of Flexmls is that adding fields and trying out different approaches typically can be done directly within the MLS administration module of the system. We definitely want to coordinate field changes with you to ensure downstream data feed recipients are notified properly but, in times like this where flexibility is needed to adjust quickly, it’s nice to know that the system is, indeed, flexible to meet your needs.

Update: CMLS will be holding an MLS Matters webinar on best practices related to concessions. Members can sign up here.