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entitled 'Real Estate Brokerage: Factors That May Affect Price 
Competition' which was released on September 28, 2005. 

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Report to the Committee on Financial Services, House of 
Representatives: 

August 2005: 

Real Estate Brokerage: 

Factors That May Affect Price Competition: 

[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-05-947] 

GAO Highlights: 

Highlights of GAO-05-947, a report to the Committee on Financial 
Services, House of Representatives: 

Why GAO Did This Study: 

Consumers paid an estimated $61 billion in residential real estate 
brokerage fees in 2004. Because commission rates have remained 
relatively uniform—regardless of market conditions, home prices, or the 
effort required to sell a home—some economists have questioned the 
extent of price competition in the residential real estate brokerage 
industry. Further, while the Internet offers time and cost savings to 
the process of searching for homes, Internet-oriented brokerage firms 
account for only a small share of the brokerage market. Finally, there 
has been ongoing debate about the potential competitive effects of bank 
involvement in real estate brokerage. 

GAO was asked to discuss (1) factors affecting price competition in the 
residential real estate brokerage industry, (2) the status of the use 
of the Internet in residential real estate brokerage and potential 
barriers to its increased use, and (3) the effect on competition and 
consumers of residential real estate brokerage by state-chartered banks 
in states that permit this practice. 

What GAO Found: 

The residential real estate brokerage industry has competitive 
attributes, but its competition appears to be based more on nonprice 
variables—such as quality, reputation, or level of service—than on 
brokerage fees, according to a review of the academic literature and 
interviews with industry analysts and participants. One potential cause 
of the industry’s apparent lack of price variation is the use of 
multiple listing services (MLS), which facilitates cooperation among 
brokers in a way that can benefit consumers but may also discourage 
participating brokers from deviating from conventional commission 
rates. For instance, an MLS listing gives brokers information on the 
commission that will be paid to the broker who brings the buyer to that 
property. This practice potentially creates a disincentive for home 
sellers or their brokers to offer less than the prevailing rate, since 
buyers’ brokers may show high-commission properties first. Some state 
laws and regulations may also affect price competition, such as those 
prohibiting brokers from giving clients rebates on commissions. 
Although such laws and regulations can protect consumers, the 
Department of Justice and the Federal Trade Commission have argued that 
they may also unnecessarily limit competition and reduce consumers’ 
choices. 

The Internet has changed the way consumers look for real estate and has 
facilitated the creation and expansion of alternatives to traditional 
brokers. A variety of Web sites allows consumers to access property 
information that once was available only by contacting brokers 
directly. The Internet also has fostered the growth of nontraditional 
residential real estate brokerage models, including discount brokers 
and broker referral services. However, industry participants and 
analysts cited several obstacles to more widespread use of the Internet 
in real estate transactions, including restrictions on listing 
information on Web sites, some traditional brokers’ resistance to 
cooperating with nontraditional firms, and certain state laws and 
regulations. 

Although about 30 states potentially authorize state-chartered banks or 
their operating subsidiaries to engage in some form of residential real 
estate brokerage, few banks in these states appear to have done so. 
GAO’s contacts with seven banks engaged in brokerage in two states 
found that they were located in small communities with few other 
brokerage options, and that their brokerage services did not differ 
significantly from those of other local real estate brokers. In 
general, because residential real estate brokerage by state-chartered 
banks appears to be so limited, its effect on competition and consumers 
has likely been minimal. 

www.gao.gov/cgi-bin/getrpt?GAO-05-947. 

To view the full product, including the scope and methodology, click on 
the link above. For more information, contact David G. Wood at (202) 
512-8678 or woodd@gao.gov. 

[End of section] 

Contents: 

Letter: 

Results in Brief: 

Background: 

Various Factors Can Influence the Extent of Price Competition in Real 
Estate Brokerage: 

The Internet Has Increased Consumers' Options, but Several Factors 
Could Limit Its Wider Use: 

Few State-Chartered Banks Appear to Engage in Real Estate Brokerage: 

Appendix: 

Appendix I: GAO Contact and Staff Acknowledgments: 

Bibliography: 

Abbreviations: 

DOJ: Department of Justice: 

FTC: Federal Trade Commission: 

MLS: multiple listing service: 

NAR: National Association of Realtors®: 

VOW: Virtual Office Web site: 

Letter August 31, 2005: 

The Honorable Michael G. Oxley: 
Chairman: 
The Honorable Barney Frank: 
Ranking Minority Member: 
Committee on Financial Services: 
House of Representatives: 

The fees paid for residential real estate brokerage--the bringing 
together of buyers and sellers of homes and the provision of related 
services by licensed brokers and agents--have increased as home prices 
have risen in recent years, well beyond the rate of general price 
inflation. While comprehensive data do not exist, REAL Trends, an 
industry source, estimates that in 2004 consumers paid about $61 
billion in real estate brokerage fees related to home sales, up from 
approximately $43 billion in 2000.[Footnote 1] Payments to brokers are 
typically percentage commissions, or a percentage of the sales price of 
the home. An observed tendency toward uniform commission rates 
regardless of local market conditions has led many economists and other 
observers to question the level of price competition--rivalry among 
firms to attract clients on the basis of price--in the residential real 
estate brokerage industry. 

The emergence of the Internet offers the potential to reduce costs by 
generating efficiencies and new ways of doing business. While many 
consumers now use the Internet to search for homes and related 
services, such as mortgages, Internet-oriented brokerage firms still 
represent a small share of the market.[Footnote 2] This has raised 
questions concerning potential institutional, legal, and other barriers 
to greater "e-commerce" in real estate. Additionally, there has been an 
ongoing debate on the potential competitive effects of allowing 
federally chartered banks and financial holding companies to engage in 
real estate brokerage. Because some states already permit brokerage by 
state-chartered banks, the experience of those states may help inform 
this debate. 

You requested that we review issues related to price competition and 
the use of information technology in the residential real estate 
brokerage industry. This report discusses (1) factors affecting price 
competition in the residential real estate brokerage industry, (2) the 
status of use of the Internet in residential real estate brokerage and 
potential barriers to its increased use, and (3) the effect on 
competition and consumers of residential real estate brokerage by state-
chartered banks in states that permit this practice. 

In addressing these topics, we reviewed academic literature on the 
structure and competitiveness of the residential real estate brokerage 
industry. (A bibliography of selected literature reviewed appears at 
the end of this report.) We did not collect original data on 
residential real estate brokerage fees or attempt to analyze the extent 
of price competition within any specific market. We interviewed and 
obtained relevant documents from industry analysts and officials of 
real estate brokerage and banking trade associations, including the 
National Association of Realtors® (NAR); national associations of state 
real estate and banking regulators; and the Department of Housing and 
Urban Development, the Department of Justice (DOJ), and the Federal 
Trade Commission (FTC). We also interviewed officials of 10 residential 
real estate brokerage firms and franchisors, including 2 companies with 
major national franchise operations, 1 full-service brokerage firm, 2 
Internet-oriented full-service discount brokerage firms, 2 companies 
that franchise limited-service discount brokerage offices, and 3 
Internet-oriented information and referral companies. The brokerages 
and franchisors we spoke with included both small and large firms, and 
these firms relied on the Internet to varying degrees. Because we spoke 
to a limited number of brokerage firms and franchisors, their views 
cannot be interpreted as being representative of all such firms. We 
also reviewed the activities of two states, Iowa and Wisconsin, where 
some banks are active in residential real estate brokerage. We spoke 
with these states' banking regulatory agencies and real estate trade 
associations, as well as with seven banks in these states that engage 
in residential real estate brokerage. The information on these seven 
banks is intended to be illustrative and cannot be generalized to state-
chartered banks nationwide. We also reviewed relevant selected state 
laws and regulations and state and federal court decisions. The scope 
of our work was limited to residential real estate brokerage and did 
not address other aspects of real estate transactions, such as mortgage 
financing, title search and insurance, or the settlement 
process.[Footnote 3] We performed our work primarily in Boston, 
Massachusetts; Chicago, Illinois; and Washington, D.C., between January 
and July 2005. We performed our work in accordance with generally 
accepted government auditing standards, except that we did not seek 
agency comments on this report because we did not review agencies' 
programs. However, we provided selected portions of a draft of this 
report to DOJ and FTC for their technical comments, which we 
incorporated where appropriate. 

Results in Brief: 

A number of factors can influence the degree of price competition in 
the real estate brokerage industry. Some economists have observed that 
while the industry has attributes associated with active competition--a 
large number of relatively small firms and ease of entry--it has 
displayed more evidence of competition on the basis of nonprice 
factors, such as reputation or level of service, than on price. 
Although there are no comprehensive data on brokerage fees, past 
analyses and anecdotal information suggest that commission rates have 
persisted in the same range--roughly 5 percent to 7 percent of a 
property's selling price--over long periods, regardless of local market 
conditions, housing prices, or the cost or effort required to sell 
different properties. Our review of the academic literature and 
interviews with industry analysts and participants suggest several 
potential causes of this relative lack of price variation. First, 
multiple listing services (MLS)--the local organizations through which 
brokers share information about properties--may encourage price 
conformity by, for example, showing the commission that buyers' brokers 
will receive for cooperating in the sale of a property. Because, all 
else being equal, buyers' brokers have less incentive to show 
properties that offer them a lower commission, this system may 
discourage brokers from offering less than the prevailing commission 
rate. In addition, sellers' brokers may offer a lower share of the 
sales commission to buyers' brokers who advertise discounted prices 
than to other brokers. Further, some states prohibit brokers from 
giving clients rebates on commissions, and some states require or are 
considering proposals to require brokers to provide consumers with a 
minimum level of service. Although such laws may offer some consumer 
protections, DOJ and FTC have argued that they can potentially prevent 
price competition or reduce consumers' choice of brokerage services. 

The Internet has increased consumers' access to information about 
properties for sale and facilitated new approaches to real estate 
transactions. Many brokers post on Web sites information--in varying 
degrees of detail--about properties they have contracted to sell 
("listings"), enabling consumers to obtain such information without 
consulting a real estate broker. The Internet also has fostered the 
creation or expansion of a number of Internet-oriented real estate 
brokerage and related firms, including some discount brokers and 
services that refer clients to brokers. However, several potential 
obstacles to further expansion of the Internet's role in real estate 
brokerage exist, including the extent to which listing information is 
made available for brokers to post online. For example, NAR has 
considered allowing listing brokers to decide which other brokers may 
display their MLS listings online. Some brokers' refusal to allow their 
listings to be posted on certain brokers' Web sites could constrain 
potential buyers' Internet searches for properties for sale, 
potentially limiting the business of Internet-oriented brokers. 
Internet-oriented discount brokers may also face resistance from 
traditional brokers and may be affected by the state laws that prohibit 
or restrict commission rebates to consumers. Finally, other factors, 
such as the lack of a uniform sales contract for residential real 
estate and of a uniform technology to facilitate related processes--
such as inspection, appraisal, financing, title search, and settlement-
-may inhibit the use of the Internet for accomplishing the full range 
of activities needed for real estate transactions. 

Approximately 30 states have laws or regulations that potentially 
authorize state-chartered banks or their operating subsidiaries to 
engage in real estate brokerage under some circumstances. However, only 
a limited number of banks in these states appear to have used this 
authority, so the effect on competition and consumers has likely been 
minimal. On the basis of our review of state statutes and regulations 
identified by two national associations, at least 5 states and the 
District of Columbia provide relatively clear authority for banks or 
their subsidiaries to engage in real estate brokerage. Laws in certain 
other states may also provide such authority, but these laws are 
ambiguous or subject to regulatory interpretation. The exact number of 
state-chartered banks engaged in real estate brokerage is unknown but 
appears to be limited, according to trade and regulator associations in 
the banking and real estate industries. The seven banks we spoke with 
told us that they offered brokerage services in small communities and 
provided an additional option for local customers. These banks said 
that real estate brokerage was a small portion of their business, and 
that their brokerage services and pricing did not differ significantly 
from those of other local brokerage companies. 

Background: 

Traditionally, real estate brokers have offered a full, "bundled" 
package of services to sellers and buyers, including marketing the 
seller's home or assisting the buyer's search, holding open houses for 
sellers and showing homes to buyers, preparing offers and assisting in 
negotiations, and coordinating the steps to close the transaction. 
Because real estate transactions are complex and infrequent for most 
people, many consumers benefit from a broker's specialized knowledge of 
the process and of local market conditions. Still, some consumers 
choose to complete real estate transactions without a broker's 
assistance, including those who sell their properties on their own, or 
"for-sale-by-owner."

For many years, the industry has used a commission-based pricing model, 
with sellers paying a percentage of the sales price as a brokerage fee. 
Brokers acting for sellers typically invite other brokers to cooperate 
in the sale of the property and offer a portion of the total commission 
to whoever produces the buyer. Agents involved in the transaction may 
be required to split their shares of the commission with their 
brokers.[Footnote 4] Under this approach, brokers and agents receive 
compensation only when sales are completed. Common law has generally 
considered both brokers cooperating in the sale of a home to have a 
fiduciary responsibility to represent the seller's interests, unless 
the buyer's broker has specifically agreed to represent the buyer's 
interests.[Footnote 5]

In recent years, alternatives to this traditional full-service 
brokerage model have become more common, although industry analysts and 
participants told us that they still represent a small share of the 
overall market. Discount full-service brokerages charge a lower 
commission than the prevailing local rate, but offer a full package of 
services. Discount limited-service brokerages offer a limited package 
of services or allow clients to choose from a menu of "unbundled" 
services and charge reduced fees on a commission or fee-for-service 
basis. 

Most local real estate markets have an MLS that pools information about 
homes that area brokers have agreed to sell. Participating brokers use 
an MLS to "list" the homes they have for sale, providing other brokers 
with detailed information on the properties, including how much of the 
commission will be shared with the buyer's agent. An MLS serves as a 
single, convenient source of information that provides maximum exposure 
for sellers and facilitates the home search for buyers. Each MLS is a 
private entity with its own membership requirements and operating 
policies and procedures. According to NAR, approximately 900 MLSs 
nationwide are affiliated with the trade association, whose more than 1 
million members represent approximately 60 percent of all active 
licensed real estate brokers and agents. NAR has affiliations with 54 
state and territorial associations and more than 1,600 local 
associations. When one of these local associations owns and operates an 
MLS, this NAR-affiliated MLS is expected to follow NAR's model 
guidelines for various operational and governance issues, such as 
membership requirements and rules for members' access to and use of 
listing information. If a local association or its MLS fails to comply 
with these guidelines, it can lose important insurance coverage 
provided through NAR or have its charter membership in NAR revoked. An 
MLS that is not affiliated with NAR is not bound by these guidelines. 

Individual states regulate real estate brokerage, establishing 
licensing and other requirements for brokers and agents. Of the two 
categories of state-licensed real estate practitioners, brokers 
generally manage their own offices, and agents, or salespeople, must 
work for licensed brokers. States generally require brokers to meet 
more educational requirements than agents, have more experience, or 
both. For the purposes of this report, we generally refer to all 
licensed real estate practitioners as brokers. Generally, a state 
commission, led by appointees who may have a professional background in 
real estate, oversees implementation of and compliance with state 
requirements and may respond to complaints about brokers or agents or 
take disciplinary action. Federal agencies do not play a day-to-day 
regulatory role in real estate brokerage, although DOJ and FTC enforce 
compliance with federal antitrust laws in this market, as they do for 
many other markets. 

Banks may obtain charters at the federal or state level, and their 
activities are subject to oversight by federal or state regulators. The 
Office of the Comptroller of the Currency, which is a bureau within the 
Department of the Treasury (Treasury), charters and regulates national 
banks. State-chartered banks are overseen by state regulators and, if 
they have federal deposit insurance, a federal regulator.[Footnote 6] 
Many companies that own or control banks are regulated by the Board of 
Governors of the Federal Reserve System (Federal Reserve) as bank 
holding companies. Under the 1999 Gramm-Leach-Bliley Act (Pub. L. No. 
106-102), bank holding companies may qualify as financial holding 
companies and thereby engage in a range of financial activities broader 
than those traditionally permitted for bank holding companies, such as 
securities and insurance underwriting. 

Some states permit state-chartered banks to engage in real estate 
brokerage, but national banks and financial holding companies may not 
engage in such activity. The Gramm-Leach-Bliley Act permits financial 
holding companies and financial subsidiaries of national banks to 
engage in activities that the Federal Reserve and the Treasury deem, 
through order or regulation, to be financial in nature, incidental to 
such financial activity, or both complementary to a financial activity 
and not posing substantial risk to the safety and soundness of 
depository institutions or the financial system generally. In late 
2000, the Federal Reserve and the Treasury released a proposed 
regulation to allow banking companies to enter real estate brokerage 
under some circumstances.[Footnote 7] However, from fiscal years 2003 
to 2005, amendments to appropriations laws precluded the Federal 
Reserve and the Treasury from issuing such regulations. Legislation was 
introduced in the 109TH Congress to prohibit financial holding 
companies and national banks from engaging in real estate brokerage 
activities. Legislation was also introduced to permit such activity. 

Various Factors Can Influence the Extent of Price Competition in Real 
Estate Brokerage: 

A number of factors can influence the degree of price competition in 
the real estate brokerage industry. Some economists have observed that 
brokers typically compete more on nonprice factors, such as service 
quality, than on price. Evidence from academic literature and industry 
participants with whom we spoke highlighted several potential causes of 
this apparent lack of price competition. These potential causes include 
broker cooperation, largely through MLSs, which can discourage brokers 
from competing with one another on price; resistance from traditional 
full-service brokers to brokers who offer discounted prices or limited 
services; limited pressure from consumers for lower prices; and state 
antirebate and minimum service laws and regulations, which some argue 
may limit pricing and service options for consumers. 

Real Estate Brokerage Is Characterized More by Nonprice Competition 
Than Price Competition: 

The real estate brokerage industry has a number of attributes that 
economists normally associate with active price competition. Most 
notably, the industry has a large number of brokerage firms and 
individual licensed brokers and agents--approximately 98,000 active 
firms and 1.9 million active brokers and agents in 2004, according to 
the Association of Real Estate License Law Officials.[Footnote 8] 
Although some local markets are dominated by 1 or a few large firms, 
market share in most localities is divided among many small firms, 
according to industry analysts. In addition, the industry has no 
significant barriers to entry, since obtaining a license to engage in 
real estate brokerage is relatively easy and the capital requirements 
are relatively small. 

While real estate brokerage has competitive attributes, with a large 
number of players competing for a limited number of home listings, much 
of the academic literature and some industry participants we 
interviewed described this competition as being based more on nonprice 
variables, such as quality, reputation, or level of service, than on 
price.[Footnote 9],[Footnote 10] One reason for this characterization 
is the apparent uniformity of commission rates. Although comprehensive 
data on brokerage fees are lacking, past analyses and anecdotal 
information from industry analysts and participants indicate that, 
historically, commission rates have remained relatively uniform across 
markets and over time. Various studies using data from the late 1970s 
through the mid-1980s found evidence that the majority of listings in 
many communities clustered around the same rate, exactly 6 percent or 7 
percent.[Footnote 11] Although these studies and observations do not 
indicate that there has been complete uniformity in commission rates, 
they do suggest that variability has been limited.[Footnote 12] Many of 
the industry analysts and participants we interviewed said that 
commissions still cluster around a common rate within most markets, and 
they generally cited rates of 5 percent to 6 percent as typical now. 

Some economists have cited certain advantages to the commission-based 
model that is common in real estate brokerage, most notably that it 
provides sellers' brokers with an incentive to get the seller the 
highest possible price.[Footnote 13] Moreover, uniformity in commission 
rates within a market at a given time does not necessarily indicate a 
lack of price competition. But some economists have noted that in a 
competitive marketplace, real estate commission rates could reasonably 
be expected to vary across markets or over time--that is, to be more 
sensitive to housing market conditions than has been traditionally 
observed.[Footnote 14] For example, commission rates within a market at 
a given time do not appear to vary significantly on the basis of the 
price of the home. Thus, the brokerage fee, in dollar terms, for 
selling a $300,000 home is typically about three times the fee for 
selling a $100,000 home, although the time or effort required to sell 
the two homes may not differ substantially.[Footnote 15] Similarly, 
commission rates do not appear to have changed as much as might be 
expected in response to rapidly rising home prices in recent years. 
Between 1998 and 2003, the national median sales price of existing 
homes, as reported by NAR, increased 35 percent, while inflation over 
the same period was 10 percent, leaving an increase of some 25 percent 
in the inflation-adjusted price of housing. According to REAL Trends, 
average commission rates fell from an estimated 5.5 percent in 1998 to 
an estimated 5.1 percent in 2003, a decrease of about 7 
percent.[Footnote 16] Thus, with the increase in housing prices, the 
brokerage fee for selling a median-priced home increased even as the 
commission rate fell.[Footnote 17]

Some economists have suggested that uniformity in commission rates can 
lead brokers to compete on factors other than price in order to gain 
market share. For example, brokers might hire more agents in an effort 
to win more sellers' listings.[Footnote 18] Brokers may also compete by 
spending more on advertising or offering higher levels of service to 
attract clients.[Footnote 19] Although some of these activities can 
benefit consumers, some economic literature suggest that such actions 
lead to inefficiency because brokerage services could be provided by 
fewer agents or at a lower cost.[Footnote 20] For example, although 
advertising can be effective in providing buyers and sellers with 
information about broker services, the consumer benefit from brokers' 
expenditures on advertising or promotions aimed at acquiring listings 
may be less than their cost to the broker. 

To the extent that commission rates may have declined slightly in 
recent years, the change may be the result in part of rapidly rising 
home prices, which have generated higher brokerage industry revenues 
even with lower commission rates. However, competition from increasing 
numbers of discount, fee-for-service, and other nontraditional 
brokerage models may have also contributed to the decline. These 
nontraditional models typically offer lower fees, and although they 
currently represent only about 2 percent of the market, they may be 
putting some downward pressure on the fees charged by traditional 
brokerages.[Footnote 21]

Certain Factors May Inhibit Price Competition within the Real Estate 
Brokerage Industry: 

Factors related to the cooperation among brokers facilitated by MLSs, 
some brokers' resistance to discounters, and consumer attitudes may 
inhibit price competition within the real estate brokerage 
industry.[Footnote 22]

Cooperation Facilitated by Multiple Listing Services: 

While MLSs provide important benefits to consumers by aggregating data 
on homes for sale and facilitating brokers' efforts to bring buyers and 
sellers together, the cooperative nature of the MLS system can also in 
effect discourage brokers from competing with one another on price. 
Because participating in an MLS in the areas where they exist is widely 
considered essential to doing business, brokerage firms may have an 
incentive to adopt practices that comply with MLS policies and customs. 
As previously noted, MLSs facilitate cooperation in part by enabling 
brokers to share information on the portion of the commission that 
sellers' brokers are offering to buyers' brokers. In the past, some 
MLSs required participating brokers to charge standard commission 
rates, but this practice ended after the Supreme Court ruled, in 1950, 
that an agreement to fix minimum prices was illegal under federal 
antitrust laws.[Footnote 23] Subsequently, some MLSs adopted suggested 
fee schedules, but this too ended after DOJ brought a series of 
antitrust actions in the 1970s alleging that this practice constituted 
price fixing.[Footnote 24] Today, MLSs no longer establish standard 
commission rates or recommend how commissions should be divided among 
brokers. MLS listings do show how much sellers' brokers will pay other 
brokers for cooperating in a sale, according to industry participants. 
When choosing among comparable homes for sale, brokers have a greater 
incentive--all else being equal--to first show prospective buyers homes 
that offer other brokers the prevailing commission rate than homes that 
offer a lower rate. Therefore, even without formal policies to maintain 
uniform rates, individual brokers' reliance on the cooperation of other 
brokers to bring buyers to listed properties may help maintain a 
standard commission rate within a local area, at least for buyers' 
brokers.[Footnote 25]

Traditional Brokers' Resistance to Nontraditional Brokerage Models: 

Traditional brokers may discourage price competition by resisting 
cooperation with brokers and firms whose business models depart from 
charging conventional commission rates, according to several industry 
analysts and participants we spoke with. A discount broker may 
advertise a lower commission rate to attract listings, but the broker's 
success in selling those homes, and in attracting additional listings 
in the future, depends in part on other brokers' willingness to 
cooperate (by showing the homes to prospective buyers) in the sale of 
those listings. Some discount full-service and discount limited-service 
brokerage firms we interviewed said that other brokers had refused to 
show homes listed by discounters.[Footnote 26] In addition, traditional 
brokers may in effect discourage discount brokers from cooperating in 
the sale of their listings by offering discounters a lower buyer's 
broker commission than the prevailing rate offered to other 
brokers.[Footnote 27] This practice can make it more difficult for 
discount brokers to recruit new agents because they may earn more 
working for a broker who receives the prevailing commission from other 
brokers.[Footnote 28] Some traditional full-service brokers have argued 
that discount brokers often do less of the work required to complete 
the transaction and, thus, deserve a smaller portion of the seller's 
commission. Representatives of discount brokerages told us they 
believed that reduced commission offers are in effect "punishment" for 
offering discounts to sellers and are intended as signals to other 
brokers to conform to the typical pricing in their markets. 

Limited Consumer Pressure: 

Pressure from consumers for lower brokerage fees appears to be limited, 
although it may be increasing, according to our review of economics 
literature and to several industry analysts and participants. Consumers 
may accept a commission rate of about 6 percent as an expected cost of 
selling a home, in part because that has been the accepted pricing 
model for so long, and some consumers may not know that rates can be 
negotiated. Buyers may also have little concern about commission rates 
because sellers directly pay the commissions. Sellers may be reluctant 
to reduce the portion of the commission offered to buyers' brokers 
because doing so can reduce the likelihood that their home will be 
shown.[Footnote 29] In addition, home sellers who have earned large 
profits as housing prices have climbed in recent years may have been 
less sensitive to the price of brokerage fees. However, some brokers 
and industry analysts noted that the growth of firms offering lower 
commissions or flat fees has made an increasing number of consumers 
aware that there are alternatives to traditional pricing structures and 
that commission rates are negotiable. 

Some State Laws and Regulations Can Affect Price Competition: 

Although state laws and regulations related to real estate licensing 
can protect consumers, DOJ and FTC have expressed concerns that some of 
these laws and regulations may also unnecessarily hinder competition 
among brokers and limit consumer choice. 

Antirebate Provisions: 

At least 14 states appear to prohibit, by law or regulation, real 
estate brokers from giving consumers rebates on commissions or to place 
restrictions on this practice.[Footnote 30] Proponents say such laws 
and regulations help ensure that consumers choose brokers on the basis 
of the quality of service as well as price, rather than just on the 
rebate being offered.[Footnote 31] Opponents of antirebate provisions 
argue that such restrictions serve only to limit choices for consumers 
and to discourage price competition by preventing brokers from offering 
discounts.[Footnote 32] Proponents also note that offering a rebate is 
one of the few ways to reduce the effective price of buyer brokerage 
services since commissions are typically paid wholly by the 
seller.[Footnote 33] In March 2005, DOJ's Antitrust Division filed suit 
against the Kentucky Real Estate Commission, arguing that the 
commission's administrative regulation banning rebates violated federal 
antitrust laws. In its complaint, DOJ argued that the regulation 
unreasonably restrained competition to the detriment of consumers, 
making it more difficult for them to obtain lower prices for brokerage 
services.[Footnote 34] In July 2005, DOJ and the commission proposed a 
settlement agreement which, if approved by the court, would require the 
commission to cease enforcing its regulation prohibiting rebates and 
other inducements.[Footnote 35]

Minimum Service Standards: 

Ten states are considering or have passed legislation that requires 
brokers to provide a minimum level of service when they represent 
consumers.[Footnote 36] Such provisions generally require that when a 
broker agrees to act as a consumer's exclusive representative in a real 
estate transaction, the broker must provide such services as assistance 
in delivering and assessing offers and counteroffers, negotiating 
contracts, and answering questions related to the purchase and sale 
process. Advocates of minimum service standards argue that they protect 
consumers by ensuring that brokers provide a basic level of assistance. 
Further, full-service brokers argue that such standards prevent them 
from having to unfairly shoulder additional work when the other party 
uses a limited-service broker. Opponents of these standards argue that 
they restrict consumer choice and raise costs by impeding brokerage 
models that offer limited services for a lower price.[Footnote 37] In 
April and May 2005, DOJ wrote to state officials in Oklahoma, and DOJ 
and FTC jointly wrote to officials in Alabama, Missouri, and Texas, 
discouraging adoption of these states' proposed minimum service laws 
and regulations. The letters argued that the proposed standards in 
these states would likely harm consumers by preventing brokers from 
offering certain limited-service options and therefore requiring some 
sellers to buy brokerage services they would otherwise choose to 
perform themselves. They also cited a lack of evidence that consumers 
have been harmed by limited-service brokerage. Despite the concerns 
raised by DOJ and FTC, the governors in all 4 states subsequently 
signed minimum service standards into law. 

Similarly, while state licensing rules for real estate brokers and 
agents may ensure standards of quality that protect consumers, these 
rules may also restrict consumers' ability to choose among services and 
prices, ultimately reducing competition. For example, in 2004, a 
federal district court found unconstitutional a California real estate 
licensing law that required the operator of a for-sale-by-owner Web 
site to obtain a brokerage license in order to advertise property 
listings without providing any additional brokerage services. The court 
found that the law impermissibly differentiated between publications 
displaying the same basic content on their Web sites, noting that 
newspapers were not required under the law to obtain a brokerage 
license simply to display property listings on their Web 
sites.[Footnote 38]

The Internet Has Increased Consumers' Options, but Several Factors 
Could Limit Its Wider Use: 

The Internet has increased consumers' access to information about 
properties for sale and has facilitated new approaches to real estate 
transactions. Many brokers post information on their Web sites--in 
varying degrees of detail--on properties they have contracted to sell, 
enabling consumers to obtain such information without consulting a 
broker. The Internet also has fostered the creation or expansion of a 
number of Internet-oriented firms that provide real estate brokerage or 
related services, including discount brokers and broker referral 
services. Whether the Internet will be more widely used in real estate 
brokerage depends in part on the extent to which listing information is 
widely available. Like discount brokerages, Internet-oriented brokerage 
firms, especially those offering discounts, may also face resistance 
from traditional brokers and may especially be affected by state laws 
that prohibit them from offering rebates to consumers. In addition, 
certain factors--such as the lack of a uniform sales contract--may 
inhibit the use of the Internet for accomplishing the full range of 
activities needed for real estate transactions. 

The Internet Allows Consumers More Direct Access to Information: 

The Internet allows consumers direct access to listing information that 
has traditionally been available only from brokers. Before the Internet 
was widely used to advertise and display property listings, MLS data 
(which comprise a vast majority of all listings) were compiled in an 
"MLS book" that contained information on the properties listed for sale 
with MLS-member brokers in a given area. In order to view the listings, 
buyers generally had to use a broker, who provided copies of listings 
that met the buyer's requirements via hard copy or fax. Today, 
information on properties for sale--either listed on an MLS or 
independently, such as for-sale-by-owner properties--is routinely 
posted on Web sites, often with multiple photographs or virtual tours. 
For example, NAR's Realtor.com Web site features more than 2 million 
properties listed with MLSs around the country, and most brokers also 
maintain their own Web sites with information on properties for sale in 
their area. Buyers may also search for non-MLS listed properties on the 
Web sites of companies that help owners market their properties 
themselves. Thus, the Internet has allowed buyers to perform much of 
the search and evaluation process independently, before contacting a 
broker.[Footnote 39]

Sellers of properties can also benefit from the Internet because it can 
give their listings more exposure to buyers. For example, according to 
NAR, Realtor.com--which provides information on approximately 95 
percent of all homes listed with MLSs around the country--had 6.2 
million unique visitors in February 2005. Sellers who choose to sell 
their homes without the assistance of a broker can advertise their 
properties on a multitude of "for-sale-by-owner" Web sites. Sellers may 
also use the Internet to research suitable asking prices for their 
homes by comparing the attributes of their houses with others listed in 
their area. 

Despite more active participation of some buyers and sellers in the 
transaction process, some industry analysts and participants noted that 
because of the complexity of real estate transactions, some buyers and 
sellers will always desire the assistance of a broker to help them 
navigate the process.[Footnote 40] Unlike transactions that can now be 
completed entirely on the Internet--such as purchasing airline tickets 
or trading securities--real estate transactions are likely to continue 
to involve at least some in-person services for the foreseeable future. 

The Internet Facilitates Alternative Service and Pricing Options: 

Although Internet-oriented brokerages and related firms represent only 
a small portion of the real estate brokerage market at present, the 
Internet has made different service and pricing options more widely 
available to consumers. Among these options are full-service and 
limited-service discount brokerages, information and referral 
companies, and alternative listing Web sites. 

* Full-service discount brokerages offer buyers and sellers full-
service real estate brokerage services--including listing properties in 
the MLS, conducting open houses, negotiating contracts, and assisting 
with closings--but advertise lower than traditional commissions, for 
example between 3 percent and 4.5 percent. These types of brokerages 
existed before widespread use of the Internet, but many have gained 
exposure and become more viable as a result of the Internet. In 
addition, by posting listings online, displaying photographs and 
virtual tours of homes for sale, and communicating with buyers and 
sellers by e-mail, some of these companies say that they have been able 
to cut brokerage costs, allowing them to offer rebates to buyers or 
discounted commissions to sellers. 

* Limited-service discount brokerages provide fewer services than full-
service brokerages but also offer lower commission rates or offer their 
services for flat fees. For example, some firms market a full array of 
brokerage services for a reduced commission but do not list homes in 
the MLS. Other firms charge a flat fee for marketing and advertising 
homes and, for additional fees, will list a property in the MLS and 
show the home to prospective buyers. Although these types of discount 
brokers have existed since at least the 1970s, industry participants 
told us that the Internet has allowed them to grow in number and size 
in recent years, in part because they can market their services to a 
larger population of buyers and sellers. 

* Information and referral companies, including some that are licensed 
real estate brokers, provide resources for buyers and sellers--such as 
home valuation tools and access to property listings--and make 
referrals of those consumers to local brokers.[Footnote 41] Some of 
these companies charge referral fees to brokers and then rebate a 
portion of that fee back to buyers and sellers. It is through the 
Internet that these companies are able to efficiently reach potential 
consumers and offer those customers services and access to brokers. 

* Alternative listing Web sites offer alternatives to the MLS, allowing 
sellers who want to sell their homes themselves to advertise their 
properties to buyers and giving buyers another source of information on 
homes for sale. These alternative listing sites include the Web sites 
of local newspapers, Craig's List, and "for-sale-by-owner" Web 
sites.[Footnote 42] These services, which generally do not provide 
buyers and sellers with the assistance of a licensed broker, are 
limited to providing consumers with a venue for advertising homes and 
viewing properties for sale. 

Wider Use of the Internet in Real Estate Brokerage Will Depend on the 
Availability of Listing Information and Other Factors: 

Several factors could limit the extent to which the Internet is used in 
real estate transactions. A key factor is the extent to which 
information about properties listed in an MLS is widely available. 
Currently, buyers may view MLS-listed properties on many Web sites, 
including broker and MLS Web sites and on Realtor.com. NAR has 
considered a policy on Virtual Office Web sites (VOW) that would allow 
brokers to selectively exclude their MLS listings from being displayed 
on certain other brokers' Web sites and would prohibit certain types of 
companies, such as information and referral companies, from operating 
VOWs.[Footnote 43] Proponents of this policy argue that listings are 
the work product, and thus the property, of the selling broker, who 
should have control over how the listings are used. Proponents maintain 
that brokers should be able to prevent certain companies--such as 
information and referral companies--from using their listings simply to 
earn referral fees. NAR and others have also argued that freely posting 
MLS data--such as addresses, descriptions of properties, and property 
tax information--on the Internet may compromise the security and 
privacy of their clients. 

Opponents of the VOW policy argue that it is anticompetitive because it 
would unfairly limit Internet-oriented brokers' ability to provide 
their clients with access to MLS listings through their Web sites. They 
argue that NAR already has policies on the appropriate distribution of 
MLS information, and that their rules should treat information 
disseminated via the Internet no differently than information 
distributed via traditional bricks-and-mortar brokerages. They also 
note that measures can be taken to address security and privacy 
concerns related to MLS listings on the Internet, such as restricting 
the number of listings that result from an online search. Some 
opponents also expressed concern that some Internet-oriented brokers 
would not be able to compete if--in a market dominated by a single 
player--they were selectively excluded from displaying that player's 
listings. 

Even with few restrictions on the availability of information about 
properties for sale, Internet-oriented brokerage firms may face other 
challenges. First, Internet-oriented brokers we spoke with described 
resistance, similar to that previously described, involving some 
traditional brokerages that refused to show the Internet-oriented 
brokerages' listed properties or offered them buyers' brokers 
commissions that were less than those offered to other brokers. 
However, the online availability of listing information may discourage 
such behavior by enabling buyers to more easily detect whether a broker 
is avoiding other brokers' listings that are of interest. Second, some 
Internet-oriented companies said that state antirebate laws and 
regulations could affect them disproportionately, since their model 
often was built around such rebates. 

Finally, certain factors may inhibit the use of the Internet for 
accomplishing the full range of activities needed for real estate 
transactions. For example, some companies told us that they would like 
to make greater use of the Internet to facilitate the execution of the 
contract used in the purchase and sale of a property. However, they 
said that there is no single, uniform sales contract for residential 
real estate, and state laws vary with respect to which disclosures must 
accompany a sales contract. They also said that state laws vary in 
their requirements for physical copies of signed contracts, attorneys' 
involvement in signing a contract, and the circumstances under which a 
contract may be rescinded. As a result, it would be difficult to 
develop an online platform that could be used nationwide for 
residential real estate contracts. Further, industry participants told 
us that no uniform technology currently exists to facilitate the 
assistance that brokers often provide in other aspects of the real 
estate transaction, such as coordinating inspections, appraisals, 
financing, title searches, and settlements. 

Few State-Chartered Banks Appear to Engage in Real Estate Brokerage: 

Our review of certain state statutes and regulations showed that 
approximately 30 states may potentially authorize state-chartered banks 
or their operating subsidiaries to engage in some real estate brokerage 
activities. However, we also found that because only a small number of 
banks in these states appeared to have taken advantage of this 
authority, the effect on competition and consumers was likely minimal. 
We reviewed the state statutes and regulations that NAR and the 
Conference of State Bank Supervisors, using the broadest 
interpretations, identified as potentially authorizing banks' brokerage 
activity. While many of these laws are ambiguous and subject to 
interpretation by state regulators, it appears that at least 5 states 
and the District of Columbia provide relatively clear authority for 
banks or their subsidiaries to engage in real estate brokerage. An 
additional 8 states permit involvement in other real-estate-related 
activities or in unspecified activities that might be approved by the 
state. At least 7 states could potentially permit banks to conduct real 
estate activities as an incidental power, an activity closely related 
to banking, or an activity that is financial in nature. Many of the 
remaining states could potentially allow state-chartered banks to 
conduct real estate activities to the extent that national banks or 
other federal depository institutions are allowed to do so. 

The exact number of state-chartered banks that engage in real estate 
brokerage is unknown because not all state regulators track such 
activity. However, available data and interviews with real estate, 
banking, and state regulatory officials suggest that such activity is 
very limited among the approximately 5,700 state-chartered banks 
nationwide. In separate surveys in 2001, NAR and the Conference of 
State Bank Supervisors identified only eight states where state-
chartered banks had engaged in at least some real estate brokerage 
activity. More recent data were not available, but regulators and 
industry officials told us that they doubted that this activity had 
expanded significantly since 2001. They noted that real estate 
brokerage is not typically part of a bank's business model, and that 
banks in small communities may be reluctant to compete with local real 
estate brokers that may be clients of the banks. 

We spoke with officials from banks engaged in real estate brokerage, 
bank regulators, and real estate industry representatives in Iowa and 
Wisconsin--two states identified as having the most banks involved in 
real estate brokerage in 2001.[Footnote 44] The seven such banks we 
identified in these states were all in small communities that had few 
or no other real estate brokers, and some of these banks noted that 
their presence provided an additional option for local residents. None 
of the banks we spoke with offered brokerage services that were 
different than those offered by traditional brokerages, and none 
offered discount brokerage services. Most of the bank officials said 
that real estate brokerage was not a large portion of their business. 
They said their primary goal was not to link brokerage customers to the 
bank's mortgage financing and added that most of their brokerage 
customers in fact obtained their mortgages outside of the bank. 

As agreed with your offices, unless you publicly announce its contents 
earlier, we plan no further distribution of this report until 30 days 
from the report date. At that time, we will send copies to the 
Secretary of Housing and Urban Development, the Attorney General, and 
the Chairman of the Federal Trade Commission. We will make copies 
available to others upon request. This report will also be available at 
no charge on GAO's Web site at [Hyperlink, http://www.gao.gov]. 

Please contact me at (202) 512-8678 or [Hyperlink, woodd@gao.gov] if 
you or your staffs have any questions about this report. Contact points 
for our Offices of Congressional Relations and Public Affairs may be 
found on the last page of this report. Key contributors to this report 
are listed in appendix I. 

Signed by: 

David G. Wood: 
Director, Financial Markets and Community Investment: 

[End of section]

Appendixes: 

Appendix I: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

David Wood, (202) 512-8678, [Hyperlink, woodd@gao.gov]: 

Staff Acknowledgments: 

In addition to the contact named above, Jason Bromberg, Assistant 
Director; Tania Calhoun; Emily Chalmers; Evan Gilman; Christine Houle; 
Austin Kelly; Cory Roman; and Julianne Stephens made key contributions 
to this report. 

[End of section]

Bibliography: 

This bibliography includes articles cited in our report and selected 
other sources from our review of literature on the structure and 
competitiveness of the residential real estate brokerage industry. 

Anglin, P. and R. Arnott. "Are Brokers' Commission Rates on Home Sales 
Too High? A Conceptual Analysis." Real Estate Economics, vol. 27, no. 4 
(1999): 719-749. 

Arnold, M.A. "The Principal-Agent Relationship in Real Estate Brokerage 
Services." Journal of the American Real Estate and Urban Economics 
Association, vol. 20, no. 1 (1992): 89-106. 

Bartlett, R. "Property Rights and the Pricing of Real Estate 
Brokerage." The Journal of Industrial Economics, vol. 30, no. 1 (1981): 
79-94. 

Benjamin, J.D., G.D. Jud and G.S. Sirmans. "Real Estate Brokerage and 
the Housing Market: An Annotated Bibliography." Journal of Real Estate 
Research, vol. 20, no. 1/2 (2000): 217-278. 

-----"What Do We Know about Real Estate Brokerage?" Journal of Real 
Estate Research, vol. 20, no. 1/2 (2000): 5-30. 

Carney, M. "Costs and Pricing of Home Brokerage Services." AREUEA 
Journal, vol. 10, no. 3 (1982): 331-354. 

Crockett, J.H. "Competition and Efficiency in Transacting: The Case of 
Residential Real Estate Brokerage." AREUEA Journal, vol. 10, no. 2 
(1982): 209-227. 

Delcoure, N. and N.G. Miller. "International Residential Real Estate 
Brokerage Fees and Implications for the US Brokerage Industry." 
International Real Estate Review, vol. 5, no. 1 (2002): 12-39. 

Epley, D.R. and W.E. Banks. "The Pricing of Real Estate Brokerage for 
Services Actually Offered." Real Estate Issues, vol. 10, no. 1 (1985): 
45-51. 

Federal Trade Commission. The Residential Real Estate Brokerage 
Industry, vol. 1 (Washington, D.C. 1983). 

Goolsby, W.C. and B.J. Childs. "Brokerage Firm Competition in Real 
Estate Commission Rates." The Journal of Real Estate Research, vol. 3, 
no. 2 (1988): 79-85. 

Hsieh, C. and E. Moretti. "Can Free Entry Be Inefficient? Fixed 
Commissions and Social Waste in the Real Estate Industry." The Journal 
of Political Economy, vol. 111, no. 5 (2003): 1076-1122. 

Jud, G.D. and J. Frew. "Real Estate Brokers, Housing Prices, and the 
Demand for Housing." Urban Studies, vol. 23, no. 1 (1986): 21-31. 

Knoll, M.S. "Uncertainty, Efficiency, and the Brokerage Industry." 
Journal of Law and Economics, vol. 31, no. 1 (1988): 249-263. 

Larsen, J.E. and W.J. Park. "Non-Uniform Percentage Brokerage 
Commissions and Real Estate Market Performance." AREUEA Journal, vol. 
17, no. 4 (1989): 422-438. 

Mantrala, S. and E. Zabel. "The Housing Market and Real Estate 
Brokers." Real Estate Economics, vol. 23, no. 2 (1995): 161-185. 

Miceli, T.J. "The Multiple Listing Service, Commission Splits, and 
Broker Effort." AREUEA Journal, vol. 19, no. 4 (1991): 548-566. 

-----"The Welfare Effects of Non-Price Competition Among Real Estate 
Brokers." Journal of the American Real Estate and Urban Economics 
Association, vol. 20, no. 4 (1992): 519-532. 

Miceli, T.J., K.A. Pancak, and C.F. Sirmans. "Restructuring Agency 
Relationships in the Real Estate Brokerage Industry: An Economic 
Analysis." Journal of Real Estate Research, vol. 20, no. 1/2 (2000): 31-
47. 

Miller, N.G. and P.J. Shedd. "Do Antitrust Laws Apply to the Real 
Estate Brokerage Industry?" American Business Law Journal, vol. 17, no. 
3 (1979): 313-339. 

Munneke, H.J. and A. Yavas. "Incentives and Performance in Real Estate 
Brokerage." Journal of Real Estate Finance and Economics, vol. 22, no. 
1 (2001): 5-21. 

Owen, B.M. "Kickbacks, Specialization, Price Fixing, and Efficiency in 
Residential Real Estate Markets." Stanford Law Review, vol. 29, no. 5 
(1977): 931-967. 

Schroeter, J.R. "Competition and Value-of-Service Pricing in the 
Residential Real Estate Brokerage Market." Quarterly Review of 
Economics and Business, vol. 27, no. 1 (1987): 29-40. 

Sirmans, C.F. and G.K. Turnbull. "Brokerage Pricing under Competition." 
Journal of Urban Economics, vol. 41, no. 1 (1997): 102-117. 

Turnbull, G.K. "Real Estate Brokers, Nonprice Competition and the 
Housing Market." Real Estate Economics, vol. 24, no. 3 (1996): 293-316. 

Yavas, A. "Matching of Buyers and Sellers by Brokers: A Comparison of 
Alternative Commission Structures." Real Estate Economics, vol. 24, no. 
1 (1996): 97-112. 

Yinger, J. "A Search Model of Real Estate Broker Behavior." The 
American Economic Review, vol. 71, no. 4 (1981): 591-605. 

Zumpano, L.V. and D.L. Hooks. "The Real Estate Brokerage Market: A 
Critical Reevaluation." AREUEA Journal, vol. 16, no. 1 (1988): 1-16. 

(250233): 

FOOTNOTES

[1] REAL Trends is a company providing news, research, and information-
based services to the residential real estate industry. The company was 
cited in industry press and among industry participants we interviewed 
as providing the best available data on residential real estate 
brokerage fees. We considered REAL Trends' estimates to be sufficiently 
reliable based on the competency of the source producing the estimates 
and the reasonableness of the estimates. 

[2] For the purposes of this report, the term "Internet-oriented 
brokerages" refers to brokerage firms whose business model depends 
largely on the Internet. Other brokerage firms may also use the 
Internet to varying degrees. 

[3] Hereafter, for purposes of this report, the term "real estate 
brokerage" refers to residential real estate brokerage. 

[4] Brokers who operate as part of a franchise may also be required to 
share a portion of their commission revenue with the franchise, in 
payment for using the brand name and other services. 

[5] T.J. Miceli, K.A. Pancak, and C.F. Sirmans, "Restructuring Agency 
Relationships in the Real Estate Brokerage Industry: An Economic 
Analysis," Journal of Real Estate Research, vol. 20, no. 1/2 (2000). 
Some states require consumer consent if the buyer's broker is to 
represent the seller's interests; other states prohibit this form of 
agency representation. 

[6] The Board of Governors of the Federal Reserve System oversees state-
chartered commercial banks that are members of that system. Other state-
chartered banks with federal deposit insurance receive oversight from 
the Federal Deposit Insurance Corporation. 

[7] Board of Governors of the Federal Reserve System and the Department 
of the Treasury, "Bank Holding Companies and Change in Bank Control," 
66 Fed. Reg. 307 (Jan. 3, 2001). 

[8] The Association of Real Estate Law License Officials is a 
membership organization comprised of governmental agencies that 
regulate real estate activities and license brokers and agents. 
According to association officials, its members include regulators from 
48 states as well as U.S. territories and other countries. The 
association compiles data on the number of real estate brokers, agents, 
and firms from state licensing agencies. 

[9] For discussions of nonprice competition among brokers, see J.H. 
Crockett, "Competition and Efficiency in Transacting: The Case of 
Residential Real Estate Brokerage," AREUEA Journal, vol. 10, no. 2 
(1982); 
D.R. Epley and W.E. Banks, "The Pricing of Real Estate Brokerage for 
Services Actually Offered," Real Estate Issues, vol. 10, no. 1 (1985); 
T.J. Miceli, "The Welfare Effects of Non-Price Competition Among Real 
Estate Brokers," Journal of the American Real Estate and Urban 
Economics Association, vol. 20, no. 4 (1992); and G.K. Turnbull, "Real 
Estate Brokers, Nonprice Competition and the Housing Market," Real 
Estate Economics, vol. 24, no. 3 (1996). 

[10] Our review cites a number of academic studies that date back many 
years because, in large part, there is not a large body of more recent 
research on the real estate brokerage industry. However, we found that 
older research findings in this area have been consistent with more 
recent studies, as well as with testimonial evidence we obtained in 
interviews with industry analysts and market participants. For the most 
part, the economic literature and available data related to real estate 
commissions cover existing home sales and not new construction. 

[11] For example, FTC found that more than one-half of home sales had a 
commission rate of 6 percent, and that from one-quarter to one-third 
had a commission rate of 7 percent. FTC based its findings on an 
analysis of closing documents from 7,622 sales made nationwide in 1977 
and a national survey of 934 consumers who had sold homes in 1978 and 
1979. FTC found similar clustering at 6 percent and 7 percent in 
closing documents from sales in 15 of 16 cities examined (Federal Trade 
Commission, The Residential Real Estate Brokerage Industry, vol. 1 
(Washington, D.C. 1983)). J.E. Larsen and W.J. Park, "Non-Uniform 
Percentage Brokerage Commissions and Real Estate Market Performance," 
AREUEA Journal, vol. 17, no. 4 (1989), found that about 90 percent of 
listings had a commission rate of 7 percent in their analysis of 669 
listings in the Lincoln, Nebraska, area in 1986. 

[12] Some researchers have attempted to identify and explain variations 
in commission rates. For example, using samples of commission rate data 
within specific geographic areas, some studies found that rates could 
vary with, among other things, a property's price or age, its expected 
"difficulty of sale" (e.g., whether the home was vacant or renter-
occupied), or the size of the brokerage firm. See M. Carney, "Costs of 
Pricing of Home Brokerage Services," AREUEA Journal, vol. 10, no. 3 
(1982); W.C. Goolsby and B.J. Childs, "Brokerage Firm Competition in 
Real Estate Commission Rates," The Journal of Real Estate Research, 
vol. 3, no. 2 (1988); and C.F. Sirmans and G.K. Turnbull, "Brokerage 
Pricing under Competition," Journal of Urban Economics, vol. 41, no. 1 
(1997). 

[13] For example, see M.A. Arnold, "The Principal-Agent Relationship in 
Real Estate Brokerage Services," Journal of the American Real Estate 
and Urban Economics Association, vol. 20, no. 1 (1992); and G.D. Jud 
and J. Frew, "Real Estate Brokers, Housing Prices, and the Demand for 
Housing," Urban Studies, vol. 23, no. 1 (1986). 

[14] For example, see P. Anglin and R. Arnott, "Are Brokers' Commission 
Rates on Home Sales Too High? A Conceptual Analysis," Real Estate 
Economics, vol. 27, no. 4 (1999); R. Bartlett, "Property Rights and the 
Pricing of Real Estate Brokerage," The Journal of Industrial Economics, 
vol. 30, no. 1 (1981); and C. Hsieh and E. Moretti, "Can Free Entry Be 
Inefficient? Fixed Commissions and Social Waste in the Real Estate 
Industry," The Journal of Political Economy, vol. 111, no. 5 (2003). 

[15] Some industry participants we met with suggested that it costs 
more to market expensive homes, in part because the number of 
prospective buyers is smaller. However, we did not identify any data on 
brokers' actual costs of marketing homes. 

[16] REAL Trends' data do not address the range of or variation among 
actual commission rates. REAL Trends' estimates average commission 
rates by dividing the total gross commission revenue reported by the 
largest brokerage firms by their total sales volume. The estimate for 
1998 was based on data from 532 firms, and the estimate for 2003 was 
based on data from 541 firms. We considered REAL Trends' estimates to 
be sufficiently reliable on the basis of the competency of the source 
producing the estimates and the reasonableness of the estimates. 

[17] Similarly, a decrease in commission rates from the prevalent 6 
percent and 7 percent rates reported by FTC in the period around 1980 
to the levels reported by REAL Trends in recent years would have been 
more than offset by appreciation in housing prices during that period. 

[18] For example, see Crockett, "Competition and Efficiency in 
Transacting." Because agents generally are hired as independent 
contractors whose incomes are based on commissions for complete sales, 
brokers can hire agents to compete for more listings without incurring 
significant up-front costs for their labor. 

[19] For example, see Miceli, "The Welfare Effects of Non-Price 
Competition," and Turnbull, "Real Estate Brokers, Nonprice Competition 
and the Housing Market." 

[20] For example, see Hsieh and Moretti, "Can Free Entry Be 
Inefficient?"; Miceli, "The Welfare Effects of Nonprice Competition"; 
and Crockett, "Competition and Efficiency in Transacting." 

[21] Consultants to NAR estimated that discount, full-service 
brokerages, Internet-oriented full-service brokerages, broker referral 
services, and other nontraditional brokerage models collectively 
represented buyers and sellers in less than 2 percent of all real 
estate brokerage transactions in 2003. 

[22] We make no judgment on the legality of any actions that may 
inhibit price competition; such matters are beyond the scope of our 
work. 

[23] United States v. National Association of Real Estate Boards, 339 
U.S. 485, 488-89 (1950). 

[24] For example, see United States v. Greater Pittsburgh Bd. of 
Realtors, 1973-1 Trade Cas. ¶ 74,454 (W.D. Pa. 1973) and United States 
v. Los Angeles Realty Bd., 1973-1 Trade Cas. ¶ 74,366 (C.D. Cal. 1973). 
In 1971, NAR adopted a policy prohibiting its affiliated MLSs from 
fixing or recommending to their members commission rates or fees to be 
charged or the percentage division of commissions or fees. 

[25] For examples of this long-standing observation, see Bartlett, 
"Property Rights and the Pricing of Real Estate Brokerage"; Crockett, 
"Competition and Efficiency in Transacting"; 
T.J. Miceli, "The Multiple Listing Service, Commission Splits, and 
Broker Effort," AREUEA Journal, vol. 19, no. 4 (1991); and N.G. Miller 
and P.J. Shedd, "Do Antitrust Laws Apply to the Real Estate Brokerage 
Industry?," American Business Law Journal, vol. 17, no. 3 (1979). FTC 
(Residential Real Estate Brokerage) concluded that the cooperative 
nature of the industry and the interdependence among brokers were the 
most important factors explaining the general uniformity in commission 
rates that it had observed in many markets in the late 1970s. 

[26] We did not investigate specific instances of brokers' alleged 
refusal to show homes listed with discounters, nor do we have 
information to assess how common such a practice might be. 

[27] We did not investigate alleged incidents of differences in the 
commissions offered to buyers' brokers. We note that the practice of 
offering certain firms a smaller share of the commission than that 
posted in the MLS is not necessarily limited to firms that advertise 
discounted prices. In a private antitrust suit settled in 2000, Re/Max 
International, Inc., and some of its franchises alleged that two large 
brokerage firms in northeast Ohio had conspired to prevent Re/Max from 
establishing a presence in that area by offering Re/Max agents less in 
commission than other agents. Re/Max International, Inc., v. Realty 
One, Inc., 173 F.3d 995 (6th Cir. 1999). Re/Max does not advertise 
itself as a brand that offers discounted fees, but its business model 
departs from the traditional brokerage model in which brokers retain a 
significant portion of agents' commissions. Re/Max agents retain 95 
percent to 100 percent of their commission revenues and pay a fixed 
monthly fee to their brokers, an approach that arguably gives agents 
greater flexibility to reduce their fees than the traditional brokerage 
model. 

[28] Conversely, officials from one firm suggested that a broker that 
offers lower commissions to other brokers may have difficulty 
recruiting or retaining agents because the affected brokers will have 
less incentive to cooperate with those agents. 

[29] Anglin and Arnott, "Are Brokers' Commission Rates on Home Sales 
Too High?," and Goolsby and Childs, "Brokerage Firm Competition in Real 
Estate Commission Rates." 

[30] Based on our review of selected statutes and regulations in states 
identified by the Association of Real Estate Law Licensing Officials 
and two brokerage firms that provide rebates to consumers, states that 
appear to prohibit or place restrictions on real estate brokers giving 
consumers rebates on commissions include Alabama, Alaska, Iowa, Kansas, 
Kentucky, Louisiana, Mississippi, Missouri, New Hampshire, New Jersey, 
Oklahoma, Oregon, Tennessee, and West Virginia. We did not review all 
states' laws and regulations or evaluate how the states interpret and 
apply provisions, so other states may also prohibit or restrict 
commission rebates to consumers. The original intent of some state 
antirebate laws and regulations was to avoid conflicts of interest 
between agents and customers by preventing brokers from giving a share 
of their commission to lawyers, title companies, or others involved in 
the real estate transaction. 

[31] Coldwell Banker Residential Real Estate Servs. v. Clayton, 475 
N.E.2d 536, 543 (Ill. 1985). 

[32] During negotiations for the sale of a home, brokers sometimes 
agree to reduce their commissions to pay for repairs or to bridge a gap 
between the offer and the asking price. However, these reductions do 
not represent price competition because they are offered after the 
buyer and seller have selected their brokers. 

[33] According to economic theory, sellers pass a portion of their 
brokerage costs to buyers in the price of the home. By offering a 
rebate to the buyer, a broker is in effect offering to offset this 
cost. 

[34] Complaint, United States v. Kentucky Real Estate Commission, U.S. 
Dist. Ct., W.D. Ky., Case No. 3:05CV-188H, at 1, 2 (Mar. 30, 2005). 

[35] Department of Justice, Antitrust Division, "United States v. 
Kentucky Real Estate Commission; Proposed Amendment Final Judgment and 
Competitive Impact Statement," 70 Fed. Reg. 45,424 (Aug. 5, 2005). 

[36] As of August 16, 2005, Alabama, Florida, Illinois, Iowa, Missouri, 
Oklahoma, Texas, and Utah had enacted minimum service standards. 
Delaware and Kansas were considering adopting such standards. 

[37] Minimum service standards would not necessarily prohibit a broker 
from providing limited advice or service to a client if the broker had 
not agreed to act as the consumer's exclusive representative. However, 
an MLS may require brokers to have such an agreement in order to enter 
a property listing in the MLS. 

[38] ForSaleByOwner.com Corp. v. Zinneman, 347 F. Supp. 2d 868, 877 
(E.D. Cal. 2004). 

[39] Before the Internet, a buyer could still learn about properties 
without a broker--for example, through newspaper advertisements or by 
driving past a property to view it. However, the Internet can provide 
consumers with far more extensive information, including, in some 
cases, complete details on the property from the MLS as well as 
photographs or a virtual tour. 

[40] Consistent with Internet usage patterns in the United States, 
younger consumers may be more likely than older consumers to search 
listings online, a factor that could influence the growth of Internet 
use in real estate transactions over time. 

[41] These information and referral companies typically have a network 
of participating real estate brokers in various markets to which they 
refer customers. Although many information and referral companies are 
themselves licensed real estate brokers, they generally do not directly 
provide services typical of a real estate broker, such as showing homes 
or negotiating a sales price. 

[42] Craig's List is a noncommercial Internet bulletin board that 
operates in 170 communities in 34 countries. Among other things, users 
of Craig's List can post or review information on properties for sale. 

[43] NAR issued its VOW policy in 2003; however, NAR has postponed 
requiring implementation of the VOW policy by its affiliated MLSs 
pending the outcome of its negotiations with DOJ, whose Antitrust 
Division has been investigating the policy. According to NAR, some MLSs 
have implemented their own VOW policies. 

[44] The information we obtained from these banks is meant to be 
illustrative and is not representative of all banks' brokerage activity 
nationwide. 

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