You would think that REBNY is heads down busy dealing with the anti-trust commission lawsuits sweeping the nation. However, prior to the landmark $1.8 billion jury verdict, REBNY had just changed it’s Universal Co-Brokerage Agreement in October. They have decided not to make any hot fixes as a reaction to the lawsuits, including a copycat commission lawsuit recently filed by New York naming REBNY and 26 brokerages as defendants.
What’s in the new Universal Co-brokerage Agreement, and does any of it address commissions? There are 5 distinct changes:
1.) Commercial and retail spaces in a residential building may be listed in the REBNY RLS.
Normally, the REBNY RLS is only for residential listings (RLS == Residential Listing Service). However, now these commercial units will be allowed in the RLS, however, they are subject to the same simultaneous advertisement rules. If you do choose to include the listing the RLS, it must be done within 24 hours of any public marketing of the listing. You may not put it in a commercial database for a week and then decide to widen the net using the RLS. That would be a violation of the RLS cooperation mandate.
2.) Coming Soon Listings
While not new for 2024, the Coming Soon listings will now be formally codified in the REBNY RLS Universal Co-brokerage Agreement. Also, there are new rules clarifying that unsolicited offers received on a Coming Soon status listing should be presented to the seller. However, prior to presenting any offers, the listing status must be changed to Active.
3.) Owner Opt-out Rules
Sellers and Landlords may now opt-out of the REBNY RLS by filling out some formal paperwork. Why would they do so? One reason would be to give a pocket listing and exclusive to the agent, but with strict instructions that they do not want any mass or public marketing done for privacy reasons. It might be a way to give an agent a long-standing listing agreement without the pressure of accumulating a high days on market and giving the impression of a stale or undesirable home.
4.) Electronic Payments Formally Accepted
Acceptable forms of payment now include Zelle, Venmo, and other electronic funds transfers in addition to checks.
5.) Decoupling Commissions for Broker Services
This is the big one. It was already agree upon by REBNY in October and so far REBNY hasn’t felt like it requires any additional changes since the landmark Sitzer/Burnett suit.
First, there is no standard commission. REBNY discourages any notion that there is a typical or mandated commission, and they are always negotiable. Neither REBNY or the RLS fixes, controls, suggests, recommends, or maintains fees of any sort between cooperating participants on the RLS.
Offers of compensation, if any, to the buy side broker, must originate from the owner.
There is not, and never has been, a rule that REBNY prescribes a 50-50 split between cooperating brokers. An older version of the UCBA had language that prescribes a 50-50 split only when the listing agreement between the listing broker and owner omitted any mention of compensation. The latest version has removed these provisions.