2025 and Beyond: Navigating the Turbulent Waters of Real Estate Antitrust Litigation

The real estate industry is far from closing the chapter on antitrust litigation. While settlements like those in the Sitzer/Burnett and Moehrl cases aim to resolve claims related to commission rules, 2025 promises continued appeals, buyer-side lawsuits, policy reviews, and potential Department of Justice (DOJ) intervention. This year’s developments will define how brokers, agents, and consumers adapt to a changing market.

Appeals: The Fight Continues

Despite final court approvals, appeals against the National Association of Realtors’ (NAR) settlement persist. James Dwiggins, CEO of NextHome, expressed confidence that “the sell-side litigation is done,” but higher courts will ultimately decide the fate of these settlements. As Stephen Brobeck of the Consumer Federation of America noted, “Most of these challenges will be unsuccessful or achieve only marginal results.”

Buyer-Side Litigation: What It Means

Even as seller-side settlements weaken, the industry faces ongoing buyer-side commission lawsuits, such as Batton, Lutz, and Davis. These cases allege that NAR rules inflated buyer transaction costs. However, the settlements significantly reduce the potential class size for these lawsuits, as buyers who were also sellers are no longer eligible participants. Dwiggins noted:

“Now those cases are literally only first-time homebuyers.”

Policy Shifts and Industry Risks

The NAR settlement brought significant changes, such as eliminating mandatory offers of compensation to buyer agents through MLSs. These changes aim to enhance transparency and competition, but their practical application remains uncertain. As Kendall Bonner of eXp Realty pointed out, “The messy middle is a likely consequence,” with untrained agents risking further litigation due to misinterpretation of new rules.

Understanding the "No-Commingling Rule"

This optional NAR policy allows MLSs to prohibit brokerages from displaying MLS listings alongside non-MLS listings. While intended to protect data integrity, the rule is under scrutiny for its potential antitrust implications, especially as the DOJ continues its investigation.

The DOJ’s Watchful Eye

The DOJ has reopened investigations into several NAR policies, including the Clear Cooperation Policy and the no-commingling rule. The agency’s scrutiny signals a potential lawsuit in 2025. While shifts in political administration could influence the DOJ’s approach, its commitment to fostering a competitive industry remains steadfast.

What’s Next for Real Estate?

Experts agree that adapting to policy changes offers both challenges and opportunities. A proactive approach to innovation and education is essential for minimizing risks and embracing a more consumer-centric model. As Bonner aptly stated:

“It’s time to remove barriers to change, when change is needed.”

Bottomline

The landscape of real estate is evolving rapidly, with 2025 poised to be a year of transformation. From ongoing appeals to DOJ oversight, the industry faces unprecedented challenges. Whether you're buying, selling, or investing, understanding these changes is vital. Let’s connect to explore how we can navigate this new era together.

Reference: McPherson, M., & Brambila, A. V. (2024, December 24). It’s not over yet: Where real estate antitrust litigation is going in 2025. Inman.