HomeKick.com is the easiest way for agents and brokers to restore the transparency that the NAR settlement has eliminated.
The NAR settlement clearly communicates that the use of HomeKick and other off-MLS mechanisms is not a breach of the agreement and can, in fact, help brokers and franchise owners demonstrate their compliance.
Last week, we rolled out HomeKick.com, an off-MLS mechanism that allows agents and brokers to publish buyer agency compensation details about their listings. While most of the comments were positive, several agents asked if participating in a community like HomeKick is legal or otherwise violated the NAR settlement.
There are many things that need to be clarified about the settlement. One influencer even said that if you use a product like ours, "be prepared to get sued." We've done an extensive analysis of the NAR, Keller Williams, Anywhere Real Estate, and Re/Max settlements, and we're confident that HomeKick will not create any new liability for its users. Moreover, we believe that HomeKick will help agents and brokers demonstrate compliance with the settlement terms.
Much of the concern that agents have expressed is related to paragraph 58(v) in the Practice Changes section:
"58. As soon as practicable, and in no event later than the date of Class Notice (as provided in Paragraph 30 of this Settlement Agreement), the National Association of REALTORS® (defined for purposes of this paragraph to include present and future, direct and indirect subsidiaries, predecessors, and successors) will implement the following practice changes:
...(v.) agree not to create, facilitate, or support any non-MLS mechanism (including by providing listing information to an internet aggregators' website for such purpose) for listing brokers or sellers to make offers of compensation to buyer brokers or other buyer representatives (either directly or through buyers)..."
Agents want to know if they are bound to this paragraph (if they were, that would be bad news for HomeKick). The definitions give us some important clues. Paragraph 18 defines the "Released Parties."
"a. the National Association of REALTORS®, and all of its respective past, present, and future, direct and indirect, subsidiaries, predecessors, successors, affiliates (all as defined in SEC rule 12b-2 promulgated pursuant to the Securities Exchange Act of 1934), institutes, societies, councils, and all of their officers, directors, managing directors, employees, agents, contractors, independent contractors, attorneys, legal or other representatives, accountants, auditors, experts, trustees, trusts, heirs, beneficiaries, estates, executors, administrators, insurers, and assigns.
b. Any REALTORS® (members of the National Association of REALTORS®), REALTOR-Associate® Members, and REALTOR® Member Boards that do not operate an unincorporated multiple listing service… that (i) is a member of the National Association of REALTORS® on the date of Class Notice; and (ii) complies with the practice changes reflected in Paragraphs 58(vi)-(x) of this Settlement Agreement and agrees to provide proof of such compliance if requested by Co-Lead Counsel…
e. Any real estate brokerage with the calendar year 2022 Total Transaction Volume for residential home sales of $2 billion or less…but only if that brokerage (i) has a REALTOR® as a Principal with membership in the National Association of REALTORS® on the date of Class Notice; (ii) has a Principal who was a Participant in any MLS (including a Member Board that operates an unincorporated multiple listing service) at any time during the time period covered by the Settlement Class; (iii) complies with the practice changes reflected in Paragraphs 58(vi)-(x) of this Settlement Agreement and agrees to provide proof of such compliance if requested..."
The first thing to note is that the NAR and REALTORS are defined separately. If the horde of attorneys drafting the settlement agreement wanted to include REALTORS and brokers in the definition of the NAR, they would have.
Second, the release only applies to REALTORS that comply with paragraphs 58(vi)-(x). So, agents are not bound to these Practice Changes. Agents wanting to be released from the claims in this lawsuit must demonstrate that they are complying with some of the Practice Changes but, curiously, not the prohibition against supporting non-MLS mechanisms.
Now, the settlement agreement contemplates that products like HomeKick.com will become available. Paragraph 58(xiii) says as much:
"the practice changes in Paragraph 58 of this Settlement Agreement shall not prevent (a) offers of compensation to buyer brokers or other buyer representatives off of the multiple listing service; or (b) sellers from offering buyer concessions on a REALTOR® MLS (e.g., for buyer closing costs), so long as such concessions are not limited to or conditioned on the retention of or payment to a cooperating broker, buyer broker, or other buyer representative."
Appendix C has another clue: the Brokerage "Opt-In" Agreement. This is the agreement for brokerages with a Total Transaction Volume of over $2 billion in 2022. This agreement is entirely silent as to whether a brokerage should or should not support or facilitate off-MLS compensation offer mechanisms. The Opt-In Agreement contains all of the same provisions that a smaller brokerage of an agent has to agree to (Paragraphs 58(vi)-(x)) but also requires that
"iv. …company-owned brokerages and their agents disclose at the earliest moment possible any offer of compensation made in connection with each active listing shared with prospective buyers in any format;"
Anywhere Real Estate has language similar to the "Opt-In" Agreement.
The Keller Williams and Re/Max settlements have a different paragraph in their settlement agreements; this from the Keller Williams settlement:
"display offers of compensation made by listing brokers or agents, where such data is available and/or provided to Keller Williams for all active listings shared on kw.com and recommend and encourage that franchisees and agents include cooperative compensation offers (if any) on any listings that they publicly display or share with prospective buyers through IDX or VOW displays, or through any other form or format"
Additionally, each of the brokerage agreements has this or similar language to discourage steering:
"advise and periodically remind company-owned brokerages and their agents of their obligation to (and recommend and encourage that any franchisees and their agents) show properties regardless of the existence or amount of compensation offered to buyer brokers or other buyer representatives provided that each such property meets the buyer's articulated purchasing priorities"
HomeKick.com is the easiest way for agents and brokers to restore the transparency that the NAR settlement has eliminated.
The NAR settlement clearly communicates that the use of HomeKick and other off-MLS mechanisms is not a breach of the agreement and can, in fact, help brokers and franchise owners demonstrate their compliance.
A short video is here:
https://www.youtube.com/watch?v=7pVXWGMVEL4
The settlement administrators have made it easy for anyone to find copies of the NAR, Keller Williams, Anywhere Real Estate, and Re/Max settlement agreements. You can find them at https://www.realestatecommissionlitigation.com/documents.
If you want a copy of our Practice Changes Clause Reference, please request it via email at support@homekick.com.