When the National Association of Realtors signed a landmark $418 million settlement in March, economists and academics predicted that the deal — which included an agreement to upend key practices concerning how real estate agents are paid — would create the most significant shift to the industry in a century.
The real estate industry is resisting the changes that go into effect on Aug. 17.
“A lot of agents have been sort of lulled into the idea that Aug. 17 isn’t really going to happen,” said Laura Ellis, a broker in Chicago who serves as chief strategy officer and president of residential sales at the brokerage Baird and Warner.
The settlement makes it clear that agents can no longer discuss splitting compensation on the online databases, called the multiple listing service or the M.L.S., that they use to list homes. And Michael Ketchmark, the lead lawyer in the successful lawsuit against N.A.R., cautioned that agents who seek to move the commission conversation to other venues would be opening themselves to potential legal fights.
“Anyone who thinks they can continue to fix commissions on new websites or side deals is foolish and wrong,” he said. “We will take legal action to enforce the settlement agreement. It’s time to let the free market finally work.”
The Department of Justice, which reopened a yearslong investigation into the trade group after the settlement was signed, continues to investigate N.A.R.’s antitrust activity as well.
But in a move that some agents say is leading to confusion, the National Association of Realtors has been encouraging its 1.5 million members to maintain the status quo and move compensation talks to another venue.
“If there’s one thing I know about members, they will figure out how to efficiently communicate the information to see if there will be any cooperating compensation,” said Kevin Sears, the president of N.A.R., in an official video message distributed March 23.
In an email sent to N.A.R. members on July 31, Katie Johnson, the group’s chief legal officer, repeated that advice: “Offers of compensation will continue to be an option consumers can pursue off-MLS through negotiation and consultation with real estate professionals.”
Asked in an interview if she had any concerns about the legality of compensation conversations between agents, Ms. Johnson said, “the settlement specifically preserves that option.”
The guidance has led to a flurry of conversations between agents about how, exactly, to discuss compensation after Aug. 17.
Take the old-fashioned route and pick up the phone to call a listing agent to discuss? Others have been more far-fetched: In a Facebook group for agents, one suggested using a photo with three cookies on a kitchen table to communicate a 3 percent commission. Ryan Tucholski, the chief executive of the West Volusia Association of Realtors, a local association in Central Florida, said his office was aware of agents advising each other to superimpose movie titles like “The Three Amigos” on photos of a home’s living room television to transmit the same type of offer.
“The interpretations have gone wild,” Mr. Tucholski said.
Richard Hopen, a former broker who has worked with Compass and Redfin and now runs a business focused on educating home buyers, said he realizes some agents might discourage buyers from looking at homes where they don’t stand to make a commission, a process called steering. And sellers might be worried that if they don’t continue to offer high commissions, they’ll be at a disadvantage.
It’s a theory supported by academic research — one study published in January from the University of Southern California School of Law examined all the home listings on Redfin between June 12, 2021, and Feb. 3, 2022. The data, which covered hundreds of thousands of homes in 34 of the nation’s largest real estate markets, showed that home listings offering low commission to buyers’ agents sat on the market longer and received fewer visitors.
One thing is clear: The changes are forcing agents to discuss their pay with buyers and sellers in new ways.
Not all agents are going to be comfortable having those conversations, which is going to make the rollout of the rule changes bumpy, said Rob Hahn, a real estate strategist who writes a popular industry subscription newsletter, NotoriousROB.
“Until at least the end of the year, we’re going to have chaos,” he said. “And a lot of agents aren’t going to be able to deal with the changes. We’re going to see a lot of them choose to leave the industry.”