The Rise of Antitrust Enforcement in Residential Real Estate: Challenging the Practices of Multiple Listing Services
Antitrust enforcement has increased recently in hot-button areas like big tech and labor, and now we can add housing to the mix. Over the past two years, the Private Bar has filed at least eight lawsuits challenging various Multiple Listing Services (MLS) practices in the residential real estate brokerage industry. The Department of Justice (DOJ) has also stepped up its investigations into these practices. These enforcement actions apply both traditional and new antitrust concepts to one of the most important financial transactions people make in their lives.
Most homes for sale in the United States are listed on an MLS, a database used by real estate brokers to share information about homes and facilitate their purchases. MLSs are owned and operated by regional associations of real estate brokers, and these regional associations are overseen by the National Association of Realtors (NAR). Regional associations require member brokers to adopt NAR rules in exchange for access to their MLSs. At least three of these rules – commission sharing, “clear cooperation policies” and internet data sharing rules – are now being challenged in federal courts for allegedly distorting home prices and deprive home buyers and sellers of non-MLS alternatives.