No. NAR’s MLS policy only requires written agreements with buyers prior to showing one to four family residential properties for sale. However, MLSs have discretion to adopt additional policies. Check your local MLS rules for specific requirements that may apply to other types of properties.

No. Texas law does not allow agents to provide services in a non-agency capacity. When providing brokerage services, such as showing property, a license holder must represent someone in a transaction. An agent can only choose to treat a party to a transaction as a customer if the agent already represents the other party.

For example, when a listing agent interacts with an unrepresented buyer who wants to purchase the listed property, the agent can take that buyer on as a client, or the buyer can remain unrepresented, and the buyer would be considered a customer. This arrangement is only possible because the listing agent is already representing the seller. However, if the agent that wants to show a property is not the listing agent, the agent cannot treat the buyer as a customer. The agent would have to represent someone, either the buyer as a buyer’s agent or the seller as a subagent. If the agent represents the buyer, the agent must get a written representation agreement to show the home. Listing agents and subagents do not have to get written agreements with buyers to show a home if they only represent the seller.

MLS policy prohibits participants and subscribers from filtering out MLS listings provided to clients and consumers based on compensation offered to buyer’s brokers. REALTORS® must provide the buyer with all property that otherwise meets the buyer’s criteria. Allow buyers to choose which properties to visit. REALTORS® should also explain to their clients that even though a property may not have an advertised offer compensation or concession up front, it’s still possible to negotiate seller concessions and buyer broker compensation when the buyer submits an offer.

Yes. Texas REALTORS® legal staff worked diligently to ensure that the updated Texas REALTORS® forms work seamlessly with the current TREC forms. Texas REALTORS® has been in communication with TREC about any potential updates to promulgated TREC forms. The association's forms allow members to continue to do business using TREC contracts while staying in compliance with updated NAR rules. If TREC contracts change, Texas REALTORS® will update our forms as necessary.

Yes. The Department of Veterans Affairs issued a temporary rule that went into effect on August 10, 2024, that allows VA buyers to pay reasonable and customary amounts for buyer's broker fees if the property is located in an area where either the listing broker is prohibited from setting buyer's broker compensation through an MLS or the buyer broker compensation cannot be established or flow through the listing broker. If a VA buyer purchases a home that was listed in an MLS that prohibits advertising broker compensation, the buyer can pay reasonable and customary amounts for buyer's broker compensation. However, buyer's broker compensation cannot be included in the loan amount.

TREC recently made changes to Paragraph 12 in several sales contracts. Many REALTORS® are now asking if they should use Paragraph 12 in the contract or the Compensation Agreement Between Brokers (TXR 2402) to document broker compensation. This how-to guide will help answer your questions.

On March 15, 2024, NAR announced a proposed settlement agreement to end antitrust litigation brought on behalf of home sellers related to broker commissions. As part of the settlement, NAR agreed to make several policy changes which have been incorporated into mandated MLS rules. These new rules affect offers of compensation on an MLS and include specific requirements for disclosures and written agreements.

• Offers of compensation from sellers or listing brokers to buyer’s brokers cannot be included anywhere on an MLS platform. Any platform that uses MLS data cannot display offers of compensation from multiple brokers.
• Listing brokers must disclose to sellers and obtain seller approval for any payment or offer of payment that the listing broker or seller will make to another broker acting for buyers. This disclosure must be in writing and provided in advance of any payment or agreement to pay and must include the amount or rate of any such payment.
• MLS participants must disclose to sellers and buyers that broker commissions are not set by law and are fully negotiable. This disclosure must be contained in listing agreements and buyer representation agreements.
• MLS participants working with a buyer must have a written agreement with the buyer before touring any home.
• Working with a buyer” means providing brokerage services to a buyer, such as identifying property to purchase, arranging showings, and negotiating offers. Listing agents do not have to get written agreements to show their own listings because they are not working with a buyer; they are representing the seller.
• “Touring a home means” when the buyer and MLS participant enter the house. This includes when the MLS participant enters the home to provide a live virtual tour to a buyer not physically present. In Texas, we call this “showing” a home.
• A “home” means a one-to-four family residential property.

The written agreement with a buyer must contain three specific provisions:

• The agreement must disclose the amount or rate of compensation the REALTOR® will receive or how this amount will be determined.
• The amount of compensation reflected in the agreement must be objectively ascertainable and may not be open-ended. For example, it can’t say, “compensation will be whatever amount seller is offering”
• The MLS participant may not receive compensation for brokerage services from any source that exceeds the amount or rate agreed to in the agreement.

Note: The required contractual provisions have been made to the applicable Texas REALTORS listing and buyer/tenant representation agreements.

No. Local MLSs are responsible for enforcement of MLS rules and regulations. If you suspect an MLS participant is not complying with the written buyer agreement requirement, you should contact your local MLS.

Yes. Under NAR policies, brokerages are allowed to post offers of compensation on their own websites but only for their own listings, even if their websites receive MLS data through an IDX feed. NAR rules also permit brokers to post a link to their brokerage website in MLS platforms, such as in an agent remarks field. However, the link cannot lead to the webpage with the broker’s offer of compensation. The link can lead to the broker’s website homepage. There could then be a link from the homepage that goes to the page with the compensation information. In other words, the homepage cannot have offers of compensation, but the next click could.

Note: Local MLSs have discretion to adopt additional rules. Check your local MLS rules for any restrictions regarding agent remarks.

Yes. Listing brokers may advertise offers of compensation on signage. Offers of compensation are only prohibited from being included on an MLS.

Yes. Unlicensed assistants may answer questions about offers of compensation. Per TREC Rule 535.5(f), an answering service or clerical or administrative employee identified to callers as such may confirm information concerning the price and terms of property advertised.

MLSs will make their own rules regarding where this kind of information can be shared in the MLS. Check with your local MLS about where to include information regarding the seller’s willingness to pay some of the buyer’s expenses.

No. TXR 1412 includes information about the seller concessions possibly being used for the buyer’s broker fees, so this form cannot be included on the MLS. MLSs have the discretion to allow brokers to include information about sellers paying buyers’ expenses. However, any amounts listed on an MLS cannot be earmarked for broker compensation

No. TXR 2402 contains information regarding compensation between a listing broker and buyer’s broker. MLS policy prohibits compensation information from being included anywhere in the MLS.

Yes, brokers and clients can negotiate compensation on a case-by-case basis. Keep in mind that fair housing laws apply to both sellers and their agents. Payment of different commissions cannot be based on a party’s or their agent’s status in a protected class. NAR has resources available for brokers and agents to use.