S
tephen Brobeck, senior fellow at the Consumer Policy Center (CPC), warns that a weary Department of Justice and regulators may allow risky real‑estate practices to persist. He says consumers must now demand change. The National Association of Realtors (NAR) settlement last year was intended to curb anti‑consumer tactics, yet the industry’s commission structure has barely shifted. A CPC study, employing “mystery shopper” researchers, found that every agent surveyed still asks for 2.5‑3 % of a home’s final sale price. Many agents resist negotiating, relying on outdated arguments that the buyer’s fee is paid by the seller. This reluctance could expose brokerages to future litigation, especially as the market shows little change in commission behavior.
Brobeck attributes the inertia to litigation fatigue. “Litigators are exhausted; the settlement didn’t cost the industry as much as feared, so they’re done,” he explained. The DOJ, preoccupied with other cases, appears to have paused antitrust enforcement in real‑estate. Consequently, agents are increasingly demanding 3 % commissions, and the DOJ’s silence may embolden them. While this may temporarily shield the industry, it does not eliminate the risk of future legal or consumer pressure.
The core problem is the lack of competition in commission structures. Without a meaningful shift, the industry remains vulnerable. Brobeck stresses that the market’s self‑regulation has failed; if regulators and litigators step back, the responsibility falls on consumers. The real‑estate sector is opaque and complex, and few third parties guide buyers on agent selection. To extract maximum value, consumers should interview multiple agents and explicitly negotiate a fixed dollar amount rather than a percentage. By demanding transparency and a clear fee, buyers can help sever the traditional tie between seller and buyer agent compensation.
Decoupling commissions, mandated by the settlement, is more difficult in practice than theory. Agents often default to the old model, citing the seller’s responsibility for the buyer’s fee. This practice not only stifles competition but also keeps the industry legally exposed. The CPC study noted that agents used outdated talking points, reinforcing the notion that the buyer’s commission is a seller‑borne cost. Such rhetoric undermines the settlement’s intent and keeps the market from evolving.
It is time for consumers to step up. The industry’s opacity means buyers rarely know how to evaluate an agent’s fee structure. Brobeck recommends that consumers interview at least two or three prospective agents, clearly state that they understand compensation can be negotiated beyond a percentage, and ask for a specific dollar amount. By insisting on a transparent, fixed fee, buyers can force agents to break the long‑standing link between seller and buyer commissions.
Ethical brokers have an opportunity to educate clients and promote a competitive, decoupled commission model. If consumers insist on clear, negotiable fees, the industry may finally move toward a more balanced and legally sound structure.
