PHOTO: Jason Oppenheim. FILE
The real estate industry could soon be upended, says star broker Jason Oppenheim.
Oppenheim – who leads a team of glamorous agents on Netflix (NFLX) reality series “Selling Sunset” – recently sat down with Yahoo Finance to talk about the current state of the U.S. real estate market. During the far-ranging conversation, he warned that the industry’s commission structure could soon change forever.
“To be specific about real estate agents, we’ve got federal regulators and a couple of lawsuits coming down the pipeline that at worst case could be an armageddon for real estate agents,” he said. “You might see regulators uncouple the commission structure where the seller is now essentially paying for the buyers’ and agents’ commission.”
In 2019, two home-sellers filed a lawsuit [Sitzer et al v. National Association of Realtors (NAR)], alleging that several NAR rules violate the Sherman Antitrust Act, an 1890 law which prohibits activities that restrict interstate commerce and competition.
One of the NAR rules in question requires listing brokers to offer buyer brokers a commission to list a property. The lawsuit alleges that this practice inflates sellers’ costs and, therefore, is anticompetitive.
Traditionally, it takes two agents to sell a house: a buyer’s agent and a seller’s agent. However, if NAR loses the suit, the real estate industry would effectively see buyers’ agents removed from the equation. That means the number of real estate agents in the U.S. (there are 1.5 million right now, according to NAR), could drop precipitously .
“You could see hundreds of thousands of real estate agents leaving the profession, and major brokerages go out of business,” said Oppenheim. “We’re on the precipice of an armageddon that nobody talks about.”
There’s hope for a settlement with regulators or an appeal process, but there’s a high likelihood the marketplace for real estate agents is about to get majorly overhauled, said Oppenheim. He added that we could see the U.S. ultimately turn towards a model with lower total commissions, as is the case in Australia.
“I think there are too many real estate agents anyway, so I don’t think that’s part of the problem,” he said. “I think the problem is that if we remove the buyer’s agent’s commission, you’ll see the listing agent representing the buyer in 90% of transactions. It’s called dual agency,” said Oppenheim. “I don’t think that’s healthy for the consumer, because I think that the buyer should have their own representation. It would be no different than going into a courtroom and you have one lawyer, representing both sides.”
This could create a situation where the agent would have a fiduciary duty to one side, the seller, Oppenheim added.
In 2022, a federal court ruled that a private real estate listing service could sue the NAR over anti-competitive practices. Earlier this month, the U.S. Supreme Court rejected the trade association’s attempt to challenge the ruling.
“It’s something that’s not talked about that much, and it could be difficult, probably more in 2024, but it’s coming,” Oppenheim said.
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