A Guide to Antitrust Do’s and Don’ts

AntiTrust- It’s the law. Ensure you are in compliance with this guide of Antitrust Do’s and Don’ts. The following is an excerpt from the National Association of REALTORS® Antitrust Compliance Guide:

Antitrust sensitivity is an imperative for real estate brokers in today’s marketplace, as real estate and housing are a vital part of the American economy, and therefore, a concern of government at all levels. This means that the real estate brokerage business is under constant scrutiny, and any anticompetitive conduct is likely to be detected and prosecuted.

Our industry constantly finds itself in periods where new business models are being introduced. This increases challenges and competition, just as new models have in the past. The law and our Code of Ethics serve to assure that consumers have the complete and accurate information that they need to make their marketplace decisions. In the end, consumers decide which business model prevails for their needs. That, of course, is the heart of the REALTOR® Association’s antitrust compliance program. The obligations of being a member of a REALTOR® Association imposes a higher standard with regard to statements made about competitors. Article 15 of the Code of Ethics states:

“REALTORS® shall not knowingly or recklessly make false or misleading statements about competitors, their business, or their business practices.”

One of the principles of antitrust compliance is that neither Associations nor their members collectively set the price of services provided by real estate professionals. That is a decision made independently by each firm. The firm’s brokers must take care to present pricing policies to prospective clients in a manner that is consistent with the fact that the fees or prices are independently established. This means they should never respond to a question about fees by suggesting that all competitors in the market follow the same pricing practices or to a policy of the local Association of REALTORS® that supposedly prohibits or discourages price competition.

Examples of statements to avoid

• “This is a rate every firm charges.  I’d like to lower it but no one else in the MLS will show your property unless the commission is X%.”
• “Before you decide to list with XYZ Realty, you should know that they are a discount broker and members of the Association will not show their listings.”
• “I’d like to reduce my commission but my local Association (or MLS) will not allow the listing at a lower rate.”

Brokers who make these or similar comments are antitrust accidents waiting to happen. They are a danger to themselves, their managing broker and their Association. Brokers need to learn how to explain, and if necessary, defend their firm’s pricing policies and other competitive business decisions in terms consistent with competition and not conspiracy. And for those of you who bash competitors in text messages, letters to sellers, or worse – those who think they are sly and post negative comments on social media pages not open to the public – know that these are all easily copied and pasted and sent to the Association or to the Department of Justice for follow-up.

Dangerous phrases to avoid as you continue your journey in real estate:

• “This is the rate that everyone charges.”
• “The MLS will not accept less than a 120-day listing.”
• “Before you list with XYZ Realty, you should know that no one works with them.”
• “The best way to deal with XYZ Realty is to boycott him.”
• “If he was really a professional, he would not hire part-timers.”

For questions on antitrust or any other Professional Standards related questions, please contact our Professional Standards Team at professionalstandards@chicagorealtor.com. To order copies of the REALTOR® Antitrust Compliance brochure, call NAR at 800.874.6500, or order online at www.REALTOR.org/Store.