Why The NAR Settlement Has Become A Blessing, Not A Curse

By removing the automatic assumption of buyer’s agent fees, we’re putting the focus back where it belongs, Darryl Davis writes, on fiduciary duty, negotiation and service.

Real estate has been going through one of the biggest shifts in our lifetimes. The National Association of Realtors settlement didn’t just change forms or the fine print — it changed the way licensed professionals talk about professional fees. If you’re still doing things the “old way,” you may be setting yourself up for a legal run-in.

One of the biggest mistakes I see agents still making right now is having sellers commit to a specific fee to be paid out to the buyer’s agent. On the surface, this might feel like business as usual, but times have changed, and what was once “standard practice” is now a flashing red warning light for price-fixing risk.

Let’s break this down.

How we got here: The NAR settlement and price-fixing allegations

The lawsuits that brought us here — Burnett, Moehrl and others — centered on one issue: sellers being required to pay preset fees for both their listing agent and the buyer’s agent, no matter who brought the buyer.

Courts saw that as a form of price-fixing, since sellers were effectively locking in fees across competing companies.

Think of it this way: It’s like a restaurant asking you to prepay a tip for a waiter at another restaurant you haven’t even chosen yet. That was the old real estate model — sellers paying for professionals they hadn’t hired.

Now, whether we agree with the verdict or not, and I certainly don’t, I want to be clear: this is the rulebook we now must play by, and ignoring it is not just risky; it’s reckless.

Why this matters: Realtors vs. Non-Realtors

It’s worth noting that this settlement applies directly to Realtors — those of us who are members of the National Association of Realtors (NAR). According to NAR, there are approximately 1.5 million Realtors in the United States. Industry estimates suggest there are around 2 million licensed real estate agents nationwide, meaning roughly three out of four agents — or about 75 percent — are Realtors.

That means while this settlement technically applies only to NAR members, the ripple effect will be industry-wide. Courts, regulators and even consumers will expect all real estate professionals to follow similar standards of transparency, cooperation and representation — regardless of NAR membership.

While some non-Realtors might try to sidestep these changes, the writing is on the wall: The entire industry is moving in one direction. If you want to protect yourself, follow the Realtor model.

The old way vs. the new way

Here’s what the old way looked like (the percentages below are just examples for teaching purposes):

Seller signs a listing agreement.
The agreement specifies one total fee (say 6 percent).
The listing broker decides in advance to split that fee with the buyer’s agent (say 3 percent).
That fee offer gets advertised in the MLS.

Simple, right? Yes. Safe? Absolutely not.

Here’s the new way that keeps you compliant:

Seller signs a listing agreement that specifies the listing side professional fee only.
Nothing is pre-committed to the buyer’s agent.
If a buyer’s agent is involved, their professional fee is negotiated during the offer stage between the buyer, the buyer’s agent, the seller and you.

Why old habits die hard (but must die)

I get it. Many agents are uncomfortable with this new way of doing things. We’ve been trained for decades to say, “This is how it works.” But those words are dangerous now, and agents that don’t want to accept the new way forward will find themselves in court.

If you’re still asking a seller to pre-commit to paying the buyer’s agent fee, you’re essentially re-creating the very scenario that triggered the lawsuits in the first place. If another lawsuit is filed tomorrow, your name — and your brokerage’s name — could be on it.

It’s not worth the risk. Your fiduciary responsibility is to protect your client, not expose them to potential litigation because you’re clinging to old scripts.

The opportunity hidden in the change

In our experience, agents who are following the new model are often netting a higher professional fee than before because by separating the listing fee from the buyer’s side, they’re able to confidently present their value to the seller without diluting it with assumptions about the buyer’s agent fee.

When the buyer’s agent conversation does come up, it’s part of a negotiation tied directly to the offer — not an abstract commitment months earlier.

This allows agents to do two things:

Secure their own professional fee at a healthy rate.
Support their clients in negotiating buyer’s agent fees only when it’s actually relevant.

Instead of giving away half of their professional fee upfront, they’re protecting their income and helping their sellers maximize their net proceeds.

Action steps

Here are some action steps to make sure you’re not the next headline:

1. Audit your listing agreement

Make sure your agreement clearly spells out only your listing fee. Remove any language that pre-commits the seller to paying the buyer’s agent.

2. Update your scripts

Stop saying, “We’ll pay the buyer’s agent X percent.” Replace it with:

“My professional fee for representing you as the listing agent is X percent. If a buyer’s agent is involved, their fee will be addressed when we receive an offer, and we will get the opportunity to negotiate with them along with the rest of the buyer’s terms.”

3. Train for the new buyer conversations

Buyers are now being asked to sign buyer representation agreements that spell out how their agent is compensated. If you’re representing buyers, get comfortable having that conversation upfront. If you’re on the listing side, be prepared to navigate these agreements when an offer comes in.

4. Educate your sellers

Don’t assume homeowners understand these changes. Take a few minutes in every listing presentation to explain how the new system protects them. Remember: Positioning yourself as a fiduciary and educator elevates you above the perception of being just a “salesperson.”

5. Keep documentation

If a negotiation around a buyer’s agent fee happens, document it. Get it in writing as part of the offer and acceptance process. This paper trail will protect you if questions arise later.

A lawsuit waiting to happen

Look, asking sellers to pre-commit to paying the buyer’s agent fee is a lawsuit waiting to happen. It doesn’t matter if you’ve been in the business 30 years or three months — the old way is gone. Agents who resist are the ones who are going to end up in court, on the news or out of the business.

The agents who thrive will be those who lean into the new model, sharpen their skills and communicate their value with clarity and confidence.

This isn’t about fear. It’s about professionalism

I know some agents are scared right now, so let me offer a different perspective: This shift is actually an opportunity to raise the professionalism in our industry.

By removing the automatic assumption of buyer’s agent fees, we’re putting the focus back where it belongs — on fiduciary duty, negotiation and service. We’re reminding consumers that we’re not just “salespeople.” We are licensed professionals, advisors and fiduciaries — on par with attorneys, accountants and financial planners.

It will take more skill and training, but those who adapt will better set themselves up for success.