Consumer Federation of America (CFA) report “Does Transaction Brokerage in Florida Serve the Interest of Home Buyers and Sellers?” and the associated Inman article are factually incorrect.
“All four of the MLSs have data fields where listing agents state how much they’re offering buyer brokers based on agency status. In virtually all of the sales with listed compensation — 98 percent — listing brokers offered the same compensation to transaction brokers that they did to single agents, typically either 2.5 percent or 3 percent, according to the report. The compensation offered only differed in 24 of the 2,000 sales examined. “Transaction brokers should be receiving lower compensation than single agents because these brokers have fewer legal responsibilities and less liability,” CFA said.”
CFA does not know what any of these brokers and agents were actually paid in compensation, it only knows the amount of BAC (Buyer Agent Commissions, typically offered at 2.5 percent or 3 percent) that was offered on the MLS in this study.
The State of Florida law allows buyers to negotiate a rebate with their broker from the BAC amount received. This means that each agent competes for clients by offering legitimate rebates from the buyer agent commissions, something that CFA, knowingly or unknowingly, fails to account for.
Rebates currently are prohibited by law, however, in ten states: Alabama; Alaska; Kansas; Louisiana; Mississippi; Missouri; New Jersey; North Dakota; Oklahoma; and Oregon. In addition, Iowa prohibits rebates when the customer uses the services of two or more brokers during a real estate transaction.
However, there are commission price-fixing schemes that currently operate in Florida as well, such as:
as well as a number of other similarly-situated scams
These schemes operate by price fixing commissions of independent real estate professionals as a way to earn blanket referral fees. These schemes blatantly “dangle” price-fixed uncompetitive home buyer rebates before consumers while enriching themselves with kickbacks.
Otherwise, broker commissions are not fixed in Florida and consumers can and should negotiate savings with their agents based on the level of service.
Nothing prevents consumers from negotiating a competitive buyer rebate in Florida from the BAC amount offered to the buyer agent on the MLS, unless a broker collusion and commission kickbacks are involved.
On the subject of growing problem of price-fixing and kickbacks, News Corporation Reports Second Quarter Results for Fiscal 2022 reads: “The referral model benefited from record average home values and higher referral fees, partially offset by lower transaction volume. The referral model generated approximately 32% of total Move revenues in the quarter.”
Opcity is not a legitimate real estate broker, but a sham Texas brokerage that organizes independent Realtors into a collusion hub-and-spoke network and sets blanket rebates for them (all rebates in the Opcity scam are fixed at the same amount for every broker in the scheme, a telltale of price fixing.)
Under the law, price-fixing and bid rigging schemes are per se violations of the Sherman Act. This means that where such a collusive scheme has been established, it cannot be justified under the law by arguments or evidence that, for example, the agreed-upon prices were reasonable, the agreement was necessary to prevent or eliminate price cutting or ruinous competition, or the conspirators were merely trying to make sure that each got a fair share of the market.
This means that Move, Inc, the legal owner of Opcity scam, cannot argue in federal court that the “Client Rewards” rebates are benefits to consumers, since they are price-fixed by the “hub” in order to eliminate competition between the “spokes.”
(1) The defendant created or participated in a scheme to defraud another out of money or property
(2) The defendant did so with the intent to defraud
(3) It was reasonably foreseeable that the defendant would use wire communications
(4) The defendant did, in fact, use interstate wire communications
Opcity ReadyConnect scheme meets all four of these definitions, as a matter of fact.