Could Commission Rules Kill Exclusive Listings? Compliance Expert Summer Goralik on What's Coming

Summer Goralik is a compliance expert in the real estate industry. 

Summer and I discuss the importance of empowering investigators and regulators in the real estate industry, the proactive approach needed by real estate commissions, and the complexities surrounding private listings and fiduciary duties. 

We also discuss the recent challenges facing the industry, including the NAR settlement, broker compensation issues, and the impact of private listing networks. The conversation emphasizes the need for transparency, compliance, and a unified approach to consumer protection in real estate practices. 

Don't forget to like us and share us!
Gary

* Gary serves on the South Carolina Real Estate Commission as a Commissioner. The opinions expressed herein are his opinions and are not necessarily the opinions of the SC Real Estate Commission. This podcast is not to be considered legal advice. Please consult an attorney in your area.    

Transcript

SPEAKER_02 0:01

This is Dish and Dirt with Gary Pickering, South Carolina's only podcast dedicated to the real estate agent craft. And now the host of Dish and Dirt, Gary Picker. Hi Greens, and welcome back, everyone, to another episode of Dish and Dirt. I'm your often opinionated, but rarely wrong host, Gary Pickering, coming to you from the beautiful downtown Columbia offices of Blair Keto Pickering Castellan, this, the second week of May 2025. Now, before I begin with our amazing, exceptional guest today, I do want to thank a few people for last week. As y'all know, we had the Cinco de Mayo event, and we always enjoy that and had a tremendous turnout. In fact, after the event ended, there were agents still milling around for about 45 minutes to an hour talking, which tells me that makes it a great event, that people didn't want to go home. And that's why I really love this event. Of course, we do need to thank our great sponsors. Without the sponsors, we don't have these events. Our main sponsors were Executive Construction, Great Southern Homes, BMW of Columbia. We also had our general sponsors, which was First Community Bank, Heron Insurance, CMG Home Loans, Guild Mortgage, SIC Insurance, Neighborhood Loans, and RR Insurance Agent. So we're very excited and very happy that those guys were able to sponsor, and we can't wait to have our big October event, which we're changing this year. Still honoring the military and supporting the military, but we might have something a little bit different than Rocktoberfest for you this year. Our guest today is simply amazing. I'm so excited to have her. I've been following her for quite a bit. Summer Gorlic is from Southern California. She graduated from the University of California, Santa Barbara, and she has worked in the escrow industry for many years. In 2008, she was hired as an investigator for the California Department of Real Estate, where she investigated hundreds, yes, that's right, hundreds of real estate complaints and was considered a subject matter expert in real estate and escrow. Most recently, she's been employed by the Civilian Economic Crimes Investigator for Orange County District Attorney's Office, where she's investigated real estate-related crimes, included real estate fraud. And we know all about that, unfortunately, in our state as well. In 2016, she began consulting in real estate. She now has her own company that does real estate consulting for compliance. And she is a frequent, and I do mean frequent contributor at Emmanuels and even speaks at conferences across the country, including recently for the real estate commissioners across the country. She spoke in San Diego at our conference called Arillo. So welcome. Great introduction for you. You got lots of great things together talking about. But welcome. I tell you, I feel like you're the uh California version of me. I just geek out on this stuff. I love it.

SPEAKER_01 2:30

Go on.

SPEAKER_02 2:31

I geek when it comes to this compliance stuff, when it comes to the statute, when it comes to all of it. And it's really cool to see somebody on the West Coast out there geeking on this stuff as well. So there you go. So we got lots of problems going on right now in our industry.

SPEAKER_01 2:45

Yeah.

SPEAKER_02 2:46

So many things. And we look at it CCP, PLN, we got a Zillow band, a redfin band. You got owners and CEOs of companies now just going at it and calling each other names. You got Compass suing Northwest MLS. And the best thing I thought you said recently, and I thought of everything you do, by the way. You're so nice.

SPEAKER_01 3:07

You're like one fan. You're the guy that's reading everything.

SPEAKER_02 3:10

I am the fan. I'm the fanboy.

SPEAKER_01 3:11

Okay, good. That's comforting.

SPEAKER_02 3:13

You said this. The industry feels more and more like high-stakes poker game. The second one one player lays down their hand, another is calling it and revealing a monster. Tell us more, because I feel the same way.

SPEAKER_01 3:25

Yeah, I mean, I just it feels like, you know, I don't know. And maybe I just had my head down investigating and I wasn't really paying attention to all the goings-ons on LinkedIn. I mean, I can tell you I wasn't, but it just feels like every day you wake up and I read my in-man news and I read all of my sources, and you know, there's something else is going on, you know, some other big move, big policy. And then of course the shakeup, right? Everyone's weighing in, then it's a flurry of op-eds, and you know, you're it's like you read the facts and then you read everyone's opinions, and by the end of it, I don't even know where you you stand, right? It's can get a little convoluted.

SPEAKER_02 4:01

Particularly since the Sitzer, post-sitzer Burnout case, what we've been seeing is everybody's trying to get their message out. And you've got sides that can't agree what the message is. And I feel like there's some people that's hurting this message. It's hurting what needs to be the message. Are you finding that you're seeing some of the message is counterproductive to what we as an industry should be doing?

SPEAKER_01 4:20

You know, that that settlement hit us like a ton of bricks. And I think that was also part of the problem. Like everyone, you know, all the realtors are like, we're gonna fight this, you know, we're fighting. Now it's not gonna let this go down, you know, that verdict. And then all of a sudden, you blink, March 15th, we're hearing a whole different story. So I feel like it hit the industry uh with a shock. But I wrote a lot for Inman News. They had me do this column, which I was scared to take because you know, it's ask a compliance expert. It's like the dear Abbey of compliance. Right. And, you know, all of these questions fresh out the gate because of NAR settlement. And I felt very frustrated because every time I would try to be objective and provide these answers, there were these competing narratives. You know, NAR had their frequently asked questions telling what people what to do or what suggesting what to do. And then you have the DOJ threatening in the background, and then you have different industry leaders taking it. So it just felt like kind of a big mess. And state regulators, I mean, at least in my neck of the woods, like I don't know how vocal they were during that time. Granted, it's practice versus law, so there's some differences there. But yeah, it was, it sucked for lack of a better word, that there wasn't just like one uniform path. Realtors want to do the right thing, licensees want to do the right thing, people who are ethical and honest care about the consumer. Like, let's just get on the same page here. And I really like time and time again, I'd I'd answer these QA's, and the message just was always the same. Like, let's get in the same room and let's just get this straight so that people can do the right thing.

SPEAKER_02 5:54

And you touched on something that I think nails it is that we can't even get on the same page as an industry as to what is good for the consumer. And I think the problem with that, and tell me if I'm wrong, is that when the industry can't get on the correct page or the same page, that leaves the void for the DOJ to come in, which is the last thing we need.

SPEAKER_01 6:13

No, we don't need the DOJ. Like nobody wants, I mean, listen, it's bad enough. People don't like the state getting involved. So what? You rather the federal government get involved? I mean, it's intense, it's intensified the whole thing. And I still, you know, the disconnect between what the DOJ said and what's in the NARS settlement is disturbing. I mean, you know, that NARA settlement said offers of compensation have to be removed from the MLS, but they're okay outside the MLS. But then we have the DOJ saying, no, no, no, no, you don't want to see that anywhere. So if I'm an agent working for a brokerage, I mean, I'm I'm feeling very confused at that point. And I have the federal government watching me, really? I'm just trying to, you know, sell houses.

SPEAKER_02 6:58

And that was a big problem, I think, with Sitzer is that NAR knew the settlement was coming, but I just don't feel like there was a lot of guidance. And it seems to me unfairly that it was put to the state associations. Here in South Carolina, they were the ones. SER was the ones who were scrambling to try to come up with the forms, to scramble to come up with the rules. And I I know each state practices a little bit different, but overall, this is a NAR settlement. I felt that NAR should have come out before the settlement went solid and said, this is how you're going to practice from now on.

SPEAKER_01 7:32

100%. And then the whole obviously the idea of cooperative compensation, again, not prohibited by the settlement. And then you have the DOJ preaching the decoupling of commissions, kind of this consumer-centric model. We shouldn't have so many divides after massive litigation. Like let's get on the same page, people.

SPEAKER_02 7:53

Well, and the big thing you see is that DOJ clearly doesn't understand what you do for a living. I mean, there's no doubt. I mean, some of the statements they made are just ludicrous. And when you go back to the heart of this settlement, this settlement, I actually am one of the few people who actually think the settlement was good, not in terms of the fact that you took half a billion dollars out of a struggling industry. But I don't disagree with the concept that a listing agent should not be involved in a buyer's agent's compensation. That should be negotiated at the contract stage between the buyer and the seller. The problem with it is Ketchmark doesn't even understand that. He fell ass backwards into this whole settlement. Because if you'll remember, in the beginning, he said should get paid by the buyer broker, should get paid by the broker, a listing broker should get paid by the seller. End of story. Nobody should pay either each other's. Well, that would be the death of real estate. That would be death of fair housing. And then he just falls ass backwards. And so the people who settled it don't even know what they settled, I think.

SPEAKER_01 8:47

Yeah. And I, but I think what you said is right, though. I think the spirit of it, you know, separating that out so that, you know, buyers are negotiating with their agents and sellers are strictly negotiating with their listening agents with those separate agreements. Like, I there's that's that's good. There's there's a lot of value in that. And I and honestly, I've always I've had this like little gripe that kind of exploded with the settlement. And that was I wrote an article, Gary, probably maybe 2022, and I said, Hey, all you buyer brokers out there, I see a real blind spot. You guys are not disclosing what you're receiving as compensation, you know, through the split with the listing broker and the seller. You're not disclosing that to buyers. Buyers don't even know what, I mean, they don't guess disclosure on that. Gary, I got hate mail. I woke up to hate mail. I'm like, I'm just a little compliance consultant. I'm sorry. I'm just telling you how it is. There's a real blind spot there. And then, of course, you know, all that hate mail, I laugh at it now because look, you know, look where we're at. So, yes, I do see good, like, you know, the spirit of it, there's definitely some great takeaways and and and practice changes that were necessary.

SPEAKER_02 9:54

Yeah, I get yelled at occasionally too when I speak because they don't like me complaining about these JVs and everybody's like, quit talking about my company. And I'm like, Well, I never mentioned your company by name, but uh, you assume assume that I'm talking about you, that must mean you know, stock pig squealing. Um, so I get it. It does kind of suck. Um kind of going off on a little bit of a different tangent here.

SPEAKER_01 10:14

Oh, we're just talking shop, huh?

SPEAKER_02 10:15

We're just talking shop today. Broker to broker comp, in my opinion, and and I'm I doubt I'm gonna die on two hills in 2025. First hill was we have to keep CCP. And I think we've we've done that. I think we've successfully survived that. My second hill I'm dying on this year is we have to get rid of broker-to-broker comp. And the reason I think so is that at the end of the day, either catch marks just doesn't know what he's doing, he's falling backwards into this, or he's genius. Somewhere in between there, because he is setting us up for Citzer 2.0. And Sensor 2.0 is simply going to be here we are a year later, and nothing's changed. Listing brokers are still dictating how much buyer brokers are getting. Maybe they're not doing it on the MLS, but they're still doing it. Why is a seller agent sitting here telling their seller how much they have to pay a buyer's agent?

SPEAKER_00 11:03

Yeah.

SPEAKER_02 11:03

It shouldn't. And I've been preaching to all of my agents here, quit doing broker to broker. I love what Leo Pere has done at EXP. I love what James Dwiggins has done at Next Home. These guys are forward-thinking. Where do you stand on this? They're great. Where you where do you think we're going with this broker to broker?

SPEAKER_01 11:20

I think it needs to die. I I can't believe it's still alive. Well, here in California, there was plenty of revisions of forms. California Association of Realtor forms. They took it all out. They took it all out. And that I think that was the right move. And that just seemed like the that is the correct move post-settlement, right? All the remarks of Ketchmark and the DOJ, like that was the right thing to do. But you tell me, Gary, you might have a better, your finger might have a better um, you know, push on here. Like, where where do all the other states? I mean, is there a lot of states still doing broker to broker in their forums?

SPEAKER_02 11:54

Yeah, they are.

SPEAKER_01 11:56

And where is that legal counsel? Where are all those attorneys weighing in? I want to hear what they have to say about that.

SPEAKER_02 12:01

I just don't know how we can push the fiduciary duty there. If I'm sitting here meeting with my seller and saying, you've got to pay me, and by the way, you've got to also pay the buyer agent X. How am I complying with my fiduciary duty to do what's best for my seller? What's best for my seller is you pay me for the service I'm providing you. And at some point, maybe the buyer's agent might ask you to pay some, all or none. You will decide at that time based on what the offer is, based on what the net. I don't understand how we could possibly argue that broker to broker complies with my fiduciary duty.

SPEAKER_01 12:32

Yeah, and this is probably the third time I've said this on a video here, but I'm gonna say it again, giving James Dwiggins a bigger ego. But like he was amazing at a time where there was so much confusion. So, like, you know, agents are looking to their brokers, they're sitting in town halls, they're, you know, they're in, you know, board meetings, all these things, and it was just so much, just too much uh, you know, chatter, like, like, let's get down to it. And Dwiggins is like, look, just put it in the offer. And it was like a beautiful thing. It's so simple, but it was beautiful and in some ways radical, sadly, because it's just not the, you know, it's not the world that we grew up on in real estate. But I think he did a lot of favors for a lot of people in making that just a real simple, you know, thought process, you know.

SPEAKER_02 13:17

And that's what we've been talking about here for on this show for months, is that we making we're making way too much out of this compensation. It's really not that difficult. You working out with your seller, buyer works out with their buyer. And if y'all want compensation from the buyer, from the seller to pay the buyer's side, put it in a separate compensation form. It's not that difficult. I mean, it's a good thing.

SPEAKER_01 13:35

No, and honestly, we should have been over this a long time ago. So it's sad that we're still talking about it and that's it's being hung on to in different states. So that's too bad.

SPEAKER_02 13:45

Well, let's talk about the other big issue we're seeing out there, and that's the big Zillow.

SPEAKER_01 13:49

What are you gonna say?

SPEAKER_02 13:50

It relates everything to this fiduciary duty. Obviously, it's coming from CCP, it's coming from these office office exclusives, it's coming from this PLE. All the listeners here on this show have heard me talk about, and I love what Zillow said. If the property is available to anyone, it has to be available to everyone. That sounds good to me. Zillow's arguing transparency. Are you buying Zillow's argument? Are you buying Compass's argument? Who, what are you, where do you stand in this Zillow argument?

SPEAKER_01 14:19

Yeah, I'm I'm for Zillow. I, you know, and I I know they're getting, you know, they're getting blasted on LinkedIn and other channels, you know, portal power, you know, big power moves. Okay. I mean, you know, they're not a nonprofit, right? Everyone's got a business plan and a strategy and stuff. But when you do your little decision tree and you look at the pros and cons of these things, I'm pro transparency. I'm pro that as a buyer, I can wake up in the morning, grab my phone. I don't have to call a broker. I don't have to do anything like that. I can pull it up and I can shop right on my phone. I like that world. I bet you sellers like that world too when they become tomorrow's buyers. So I'm all for open market, fair market, transparent market where everyone can participate or present. And it's funny, I was interviewed the other day by a media reporter, like, you know what? We're reaching out to you because you don't have a dog in this fight, right? You're not a practicing broker, thank God. And yeah, I'm I'm for this. And I I appreciated what Zillow did.

SPEAKER_02 15:21

So you have Compass, you've got uh Daryl Davis, Gary Gold, I'm friends with Daryl and Gary, both have been on my show. And they all claim it's all about consumer choice. You buy that? Because I certainly don't. I don't think this is a consumer choice argument. I think when you start screaming consumer choice, there's really an alter alternative motive here.

SPEAKER_01 15:38

So it's interesting. Like I am all about informed consent. And, you know, if a seller needs privacy, okay. And if a seller is a celebrity or if there's some real reason why they don't want their property on the MLS, I support that 100%. I mean, think about that, driven by the seller. That's the seller sitting down with the listing agent and saying, Well, here's the thing. You know, I want to sell my house, but I don't want my pictures of my house on the internet. I actually, I, you know, I have a I'm going through a bad divorce. Maybe I got a crazy ex-boyfriend. Who knows what the story is. When the seller sits down and directs their agent to, I don't want to be on the MLS, they understand the ramifications of that. I'm all in. But it seems like that narrative all of a sudden kind of took the back burner. All of a sudden, you know, some of these big brokers started building and building and building this private listing network. So then the seller choice argument just started kind of getting watered down, not really as powerful as it was before. And then you feel like, what is it really about? I'm confused that. Well, now it's actually a listing strategy or a marketing strategy. Well, that's a completely different story. So now you think about a seller and agent sitting at the table and the agents telling the seller why we should try this. That's a whole different narrative.

SPEAKER_02 16:58

That's not concerning. What percentage are we talking about here? I don't can't even imagine it's 1% of a uh of all the listings that people don't want to be out there. I mean, you're talking celebrities, which South Carolina has few to none. You know, it's just our celebrity is hootie. I mean, that's it. We have hootie.

SPEAKER_01 17:16

Well, hey, you got hootie, though. I'm sure Hootie doesn't want to celebrate.

SPEAKER_02 17:20

I guess maybe Darius didn't want his house in Myrtle in uh in Charleston on the market. But I mean, you're talking the very rare, uh and and they're trying to act like this is an everyday thing, and it's not. And I think we already have some mechanisms for that in place at most of these MLSs. So I just don't buy this whole consumer.

SPEAKER_01 17:39

It's a hard, it's a hard argument to buy now. I I think it was I think it was an easier argument, you know, six months ago, however long it's been, like where it was only, you know, seller choice and the autonomy for the seller to do what they want. Like I get that story, but that story changed. That story changed.

SPEAKER_02 17:59

And you have 10,000 private listings. You're telling me 10,000 people decided they didn't want their house on the market for privacy reasons?

SPEAKER_01 18:07

Yeah, I mean, the numbers, I mean, even in that uh, you know, Northwest MLS, the complaint that uh, I mean, now you know some of that data is kind of coming out. And that is interesting. And I, and you tell me, Gary, I'd love to know the data on off MLS sales resulting in dual agency. That's a number, you know. I have a full-time job, so no, I'm not researching all of these things as I should, but you tell me, what's the is there any real data on that?

SPEAKER_02 18:32

I think that's what we've got to find out next at the real estate commission, because I do think that proves the whole story, does it not?

SPEAKER_01 18:38

Yeah, I mean, bright MLS, they did that recent study where they're saying that most of these houses that start as a private exclusive do end up as an active on the MLS. So, I mean, okay, that that that if that's true. And I obviously that just covers a specific region, but I would love to see the data, you know, in California for that. What did those what do those deals look like at the end of the day?

unknown 18:59

Yeah.

SPEAKER_02 18:59

And it seems to me Compass has already figured out his story's not working because I don't know if you saw last week, he's already modified it, and now we have this private this private listing network where he's gonna make a catalog essentially of these properties, and any broker can go physically to his office and look at it. I mean, what is this 1980s with IR?

SPEAKER_01 19:19

I was looking for my 3D glasses and uh watching thriller on the TV when I heard that news break. Yeah. That was wild.

SPEAKER_02 19:27

I was like, are you I mean basically it's just admitting what everybody's been saying is that even he knows that not getting it to other brokers is the problem.

SPEAKER_01 19:34

So it that's and it's an interesting thing because you know, immediately when I read that, I was wondering, well, how does this push up against the Zillow rule? Because now, I mean, what is and I, you know, there's a lot of talk about you know the virtual office website and where that stands in in public marketing and it's not marketing, it's considered the provision of brokerage services, and there's all this talk. But I wonder where that book lands. Does that push Up against the Zillow rule of any broker can now come in. Maybe five brokers are lined up to see the book. And actually, Real Estate News did an article on it yesterday. And part of the announcement that they were quoting was that, you know, an office exclusive under clear cooperation may not allow what that book might signify. I don't know. There was an implication there. So I'm waiting for Rob Hahn to uh do another. I don't know if you follow him. I think he's brilliant. I really like him. I love reading his analysis.

SPEAKER_02 20:31

If you put it in that book and make that available to other brokers, now we are not any longer an exclusive office exclusive. Now you've you're outside the MLS rule, which says you've got to put it in MLS within 24 hours.

SPEAKER_01 20:42

Right. And so then if that listing doesn't find, you know, that little picture in the listing book, if it doesn't find itself in the MLS within 24 hours, then it may never see the light of day on Zillow, right? So I mean that's the question. I don't know what I don't know what the um verdict is on that.

SPEAKER_02 20:56

So you're a compliance expert, and one of the topics you've started Allegedly. Allegedly, in theory, right?

unknown 21:02

Yeah.

SPEAKER_02 21:03

As George Costanza would say to the untrained eye.

SPEAKER_01 21:05

Um I love George. Yeah.

SPEAKER_02 21:07

George is great. Um one of the things that you have been vocal on in your article on Inman News, as well as at Arello, is that real estate commissions across the state, across countries, rather, is they're starting to take notes. Are you seeing as the issues that they're looking at? How and why would a real estate commission care about this private listing network? What's in our business?

SPEAKER_01 21:27

Yeah. When I spoke at Arello, which was such an opportunity for me to be in front of commissioners across the country, it felt a little surreal. And actually, I sort of coined my speech as like a love letter to regulators because when do you ever get to be in a room and talking to all of these powerful people that actually can do things in their each of their respective states? But for me, it's the common denominator. So, you know, put all the fluff away in the private listing networks, all the things that are being touted by each side, put it all away. I don't care. The common denominators are fiduciary duty, disclosure, and informed consent. What does that look like? How is it achieved? And broker supervision. So those are the three things I talked about. And those are the things that are in state regulators' backyards. Those are things that they're very skilled at, right? They don't have to read an inmin article or they don't have to read the comment threads of LinkedIn. They've been enforcing these statutes for years. How do these pillars of real estate practice, how do those hold up with all this going on with the private listing, with listings going underground? And if you did read just my last article, like a DRE investigator walking into an office of a big broker, demanding to talk to the broker of record or the office manager and just going through a litany of questions, I would love to be a fly on the wall. I used to do those things, Gary, and those things were fun. Um, but I would love to do it right now in 2025, with everything you know being yelled and screamed and you know argued. I would love to see what the answers to those questions look like. And remember, DREs, they can ask for you know transactions for the last three years. They can come in and say, hey, I want to see every off MLS deal you've done since January 1. How many of those have resulted in dual agency? I want the contact information for all the principals. I'm gonna get to work. And honestly, that is kind of where I stand on this. Like, it was so it hit me like a ton of bricks. It's like, oh man, I'm so done with this debate. Like, I'm, I'm, I'm, it's making my head hurt. Let's just let state regulators figure this out, right? Because there's gonna be complaints. Gary, and you know this, like, there are sellers that are unhappy, even when their properties go on the MLS and they feel like they didn't get the most money, right? That they could have got, or maybe a neighbor came up to them after and said something to them. They will file complaints for anything. This type of activity is ripe for a complaint. So, I mean, let's just wait and see what happens. And, you know, we got 50 states, let's see where it goes.

SPEAKER_02 24:01

And the bottom line is clear cooperation came out of a lawsuit out in San Francisco because brokers were not listing properties on the MLS. They were doing it internally. And then all of the eight sellers got together and said, we feel like we could have made more money if you'd have put it on the MLS. We didn't understand what you were doing.

SPEAKER_01 24:17

So little teaspoon there. Little sneak preview.

SPEAKER_02 24:20

Yeah, I don't I don't understand where they think that somehow this isn't going to circle back on them. Have you started seeing any state regulators start holding meetings, hearings, task force, or anything on this at this point? Because I know South Carolina's interested in doing that.

SPEAKER_01 24:34

No, I'd love to bluff you, but no. The answer is no. But then again, I don't see and hear everything, but do people do tell me stuff? But I will say, having been in that room with all of those state regulators, like people were taking notes. I had a line of people asking questions to me afterwards, like they're paying attention. And that's when it's like, wow, it's like no one, no one, everyone forgot about the state regulator on this. Like, who cares about the lawsuits for a second? Like, because you know, some big brokers, they can take the lawsuits, they can pay the penalties. But like once you get an enforcement action on your record, that's very hard to make that go away. And if you're licensed in multiple states, you have to disclose that. You have to disclose those actions in other states. So it can impact licenses across the state. So sure, it may happen in one, but you if you have multiple licenses, this could be a serious problem. That makes lawsuits look like nothing.

SPEAKER_02 25:30

I could see a real estate commission basically either issuing guidance saying that we don't, because quite frankly, this is where a lot of agents get off this thing. They don't they don't get it right, is that they'll say, well, my broker's rule is, or the settlement says, or my realtor association says. And as I tell them all the time, the only thing that matters, mainly, is what your law says. The law is going to trump all of that. And so it doesn't matter to me if your brokerage allows you to do office exclusives. If it's not in the best fiduciary duty, if you're not complying with your fiduciary duty and it's not in the best interest of the seller, then it doesn't matter what your broker allows. It doesn't matter what Realtors Association or the MLS allows.

SPEAKER_01 26:09

My dog is really my dog is really over private listing. There's sign in the back in the front there. Um yeah, so I I that's that's interesting, and I agree with you.

SPEAKER_02 26:20

What did you tell commissioners at your meeting? What were you telling them to start doing to start looking for?

SPEAKER_01 26:25

You know, I laid out the issues, and you know, again, I'm talking to people who are very well versed in the law. It's very different from me talking to a room of agents and explaining why compliance is important. Like we already, like, you know, up the ante in that room. That room is ready to go. But what I what I really tried to convey was that empower your investigators was actually one angle that I had. Because when I worked at the California DR, you know, when you work for government, you know, there's a lot of stereotypes out there that government workers don't work hard. I mean, that's a stereotype that you've heard. That was not me. I worked my butt off. And a lot of my colleagues were working our butt off. And and I just feel like if commissioners motivate their staff to care about current events, to really dig in, you know, be the hero, right? And bring forth the cases that can make an impact. So part of my message was them, you know, like focusing on these common denominators, asking the right questions, empowering your investigators to want to learn and do more, not just, you know, the bare minimum, and motivate them. Because honestly, we need to hear from state regulators. It hasn't been as loud as I would have liked it to be, but there's still time. The industry is very, it's all happening right now, right? It's all happening. And there is a spot for the state regulators here at the table to make a difference.

SPEAKER_02 27:43

If you look back since Sitzaburnett, as I said, I've been doing commission work for five years. And for the first four years, we never heard anything from any commission outside of our own. We listened to our own, we never heard anybody else. And all of a sudden, Colorado comes out and says, we're not gonna comply with this section of the settlement because we think the making consumers sign a document prior to the showing of a house is anti-consumer. We're not gonna comply with it. And so you started seeing other real estate commissions saying, we're not doing it. In South Carolina, we did something very similar. We took our South Carolina brokerage disclosure form, the relationship disclosure form, we added some paragraphs to it, and then said this will stand for your document for your quote unquote uh touring agreement. So you don't have to do a touring agreement if you get this required, the form you have to already get signed anyway. If you get it signed, that's all you need to do.

SPEAKER_01 28:33

And that's coming from the commission.

SPEAKER_02 28:35

That came from the commission. Wow. So we took a proactive approach and said I love that. What at the time was happening is we were getting a lot of agents saying, Do I have to get this done by law? I'm not a realtor. Why do I have to get this agreement signed? The MLS is telling me I have to. Why do I have to do it? It's not law. Now, let's switch it. You're talking to real estate agents. What's your advice to real estate agents or brokerages?

SPEAKER_01 28:58

I'd want to see their forms. Before they tell me what they want to do, I'd like to see their disclosure form and what's being presented. And honestly, what's your ethos, right? What what is your philosophy there at your brokerage, right? Are you building a private listing network? Is your goal for those listings to never see the light of day so that you can double-end deals? Like what's the end game here? But if it's a disclosure that says summer, most of our listings show up on the MLS. But we have some sellers where our fiduciary duty to the seller is to honor their request and remove them from the MLS. I'm with you. Let's see what the disclosure says. Does it clearly lay out all of these different pros and cons and risks? Because I've seen different disclosures floating around. There's different stories to tell here. And, you know, and actually Dwiggins made a good point. I think it was with his podcast with Errol Samuelson with Zillow. Like, you know, at the end of day, sometimes consumers or clients, they're just signing documents. Worse, they're even signing documents, electronic signature, and it's like a video game, you know, how fast can we get it done? And they're really listening to the sound bites, like they're listening to what their agent is telling them. So honestly, disclosure is one thing, but what's the pitch? What's the policy? And how do brokers, I mean, if they're going to, you know, they're gonna walk down a path, like what what are they telling their agents? How are they training their agents on them? Are there, are their agents well informed on what fiduciary duty looks like? Honestly, uh, you know, people are throwing around the word fiduciary duty like it's like a household name, right? But can you fulfill fiduciary duty? It's awfully hard sometimes, right? Especially on a difficult deal. Maybe there's dual agency. I mean, I, you know, I feel like I've seen this industry from all of these like little different angles. Like I've been an expert witness. I've stood on the stand and I've testified as to how an agent has breached their fiduciary duty. Nobody wants to be in that position. That's ugly. And that's just a civil case. You know, imagine an administrative hearing against a regulator. It's even worse because that's your license. Do you like to see real estate?

SPEAKER_02 31:02

What I would really like to see in this is if you know the reason why they uh selected to go. It's one thing that you've disclosed to me that I don't have to be on the MLS and I can lose more money. I want to see in each file, why wasn't the client selected? Because outside of a domestic violence issue or they're you know they're an FBI agent who's undercover, some craziness thing that rarely happens in South Carolina like this. I just don't see You know what I love, Gary?

SPEAKER_01 31:31

I love the emails and text messages. So anytime I'm an expert witness or even just a consultant like looking over a broker's file, I love reading through the emails and texts because sometimes it's the complete opposite of what you're being told. Right. And in California, that electronic communication must be retained by law. And sometimes, you know who? Sometimes brokers won't submit all of that electronic communication because their agent didn't submit all of their electronic communication to the broker. But do you know who has all of the electronic communication from start to finish? Oh, that would be the consumer. And it tells the whole story. Yeah. And it shall set you free if you did the right thing. But boy, oh boy, will it get you in hot water if you've done the wrong thing. Yeah.

SPEAKER_02 32:20

So moving to the next topic, let's talk about this lawsuit, this NW uh NWMLS and Refkin. What is going on there and where do you think that's gonna head?

SPEAKER_01 32:29

I feel like this is a great test. Um you know, I they have to prove a lot of different things, right? And I don't know if by reading the complaint, if they've done that. Clearly, you know, they're using this angle. Was Compass using like a non-exclusive agreement in Washington to kind of get around the rules on that? I mean, you know, not get around it. I mean, it's an exemption, right? If you don't have a non-exclusive listing, were they using that?

SPEAKER_02 32:56

That's what I understand. I could be wrong, but that's what I'm understanding. See, my problem with this whole thing is forever we've had a centralized location as a consumer. And as a consumer, I mean, this goes back to when I started practicing law in 1995. The centralized place was looking at the book because we didn't have, you know, Al Gore hadn't invented the internet yet. And so you could the joke always sell. Uh you can you could get that book. And I would tell people, you know, back in the 90s before we had the internet, you had a book. It was like a Sears catalog, and you would open it up, and angels would come out and trumpets would play and fireworks and the light would shine heavenly, but it was every single property for sale in the community.

SPEAKER_00 33:35

Yes.

SPEAKER_02 33:35

And then and so you knew where to go. If you got to a real estate agent, they had the book, they controlled the inventory. And as we developed the internet and we developed realtor.com and Zillow and the MLS went, you know, electronic, things like that. MLS has still survived. And it has still been the main place to find the market. Why are we so hellbent? And this is what Compass seems to be, in getting rid of a centralized market to be like Europe. If you want to buy a house in Europe, you've got to call every individual agency. Is that house still available? Because there is no centralized location.

SPEAKER_01 34:06

It just, you know, I wrote about this. It's like it's back in time. We're going back in time. And some things are nostalgic, right? Some things are fun to think about back in time, right? But this is not one of them. No, I don't want to be like Europe. I want us all to be able to see it. I don't want fair housing issues because a certain group of people were not able to have access. And, you know, there's a lot of fair housing complaints, as is. This will only exacerbate, you know, this just makes it worse. And it just, I don't know, it seems very counterintuitive, especially when going back to like the original, like the one, the one narrative you heard about seller's choice. Well, yeah, the you know, CCP already has like built-in things that we can keep that listing off the MLS. So why wasn't that enough? Well, because there's a different plan. There's a different plan here. So it will be, I think what you know, the complaint in Washington will be very, you know, it will be very interesting to see where it goes. I personally think whether there's going to be gov government intervention somehow, some ways.

SPEAKER_02 35:10

There will be, I believe. I I think the problem here lies in one main issue.

SPEAKER_01 35:16

Let's hear it. Drum roll, do it.

SPEAKER_02 35:18

Brokerages don't make any money anymore. And the reason they don't make the money they used to make is they have screwed themselves in these models. The model used to be, when I used to we're representing a brokerage here in town, was that your seasoned agents were 9010, 8020s, you made no money on them, you made market share. But your 6040s, right out of real estate school, that's where you made your money. And now we have people coming out of real estate school demanding $85.15, $100 per transaction, and there's not enough money. So in order to make that up, we've got two options for these brokerages. One is they have to catch both sides of the transaction. Thus they screw the clients. The second one are the JVs.

SPEAKER_01 36:02

Yeah. All those affiliated services, right? Yeah. Yeah. In-house escrow. In-house escrow is a big one that I I consult on here in California. Obviously, your title, your mortgage, right? The more, the more that you can do in-house, the better off that bottom line looks. Yeah.

SPEAKER_02 36:19

And that's where if you're looking right now, you know, I've I always say, when my enemy tells me what they're going to do, I tend to listen to my enemy. It's hard. I may not like them. No. But I listen to them. And right now, we know that CatchMark and his associate, Long, I think his other partner's name's Long, has flat out said on social media, I'm coming after every JV, every ancillary business, everybody who is being paid to refer title, everybody who has is getting paid on mortgage. I take it. I didn't hear that one.

SPEAKER_01 36:48

Yeah, what does consumer choice look like with all of those bundle of services? And of course, you know, they'll they'll reduce the fees to make it, you know, make it nice and shiny and and you know, they incentivize it. So it it's an interesting discussion on that. You know, obviously that falls under RESPA and you know, state laws have their own laws that cover that. So but yeah, catch mark wants to that's where he's setting his. I mean, man, this this guy, he's gonna he's so happy. He found the real estate industry. There's just so much to pick at, I guess. And there's one.

SPEAKER_02 37:21

So uh last question. Uh we had Sister Burnett. Is that it? Are we done? Or are we just sitting and preparing for three years from now when the next big lawsuit? Because I think Citr 2.0 is gonna be worse than 1.0.

SPEAKER_01 37:35

I mean, how horrible is this, really?

SPEAKER_02 37:37

Yeah.

SPEAKER_01 37:39

Yeah. I mean, if I take Ketchmark at his word, yeah, we're gonna see something else. Um, and literally brokers right now and NAR and associations, like, pay attention, you know, reel this stuff in. Like, get your get your ducks in a row. Because if we take catch mark at his word, even if he doesn't succeed, he's gonna drag the industry through more mess. And then where is public trust? I could, you know, it's just it's sad. Like, because I'm surrounded by great real estate agents and brokers. My mom has been an agent for over 30 years. Like, I believe that some people are very tainted and jaded. They just think, you know, agents are bad. I do not. And trust me, I've seen the bad stuff, and I can still, I still think that, you know, there are way more good agents than bad agents out there. But let's be organized, people. Let's not just sit around and wait. Let's make sure our houses are clean, and then maybe we can withstand what's gonna happen next.

SPEAKER_02 38:36

Well, some, I really appreciate you joining us today. I knew it would be a fantastic conversation. Looking forward to having you hopefully at the South Carolina Real Estate Commission. But uh, thanks for being here. And uh, this is all the time we have for the show today. If you'll please like us, share us, and subscribe to us, and come back again next week for another episode of Addition. Thank you.