Wisconsin REALTORS® are familiar with the WB-36 Buyer Agency Agreement but sometimes mistakenly believe that is what is required when the NAR Settlement Agreement refers to a written buyer agreement. A written buyer agreement under the Settlement Agreement may be for other relationships with a potential buyer, not just buyer agency.
Written buyer agreements will be required of all MLS Participants, beginning August 17, 2024, who are “working with” buyers prior to “touring a home.” The “working with” language is intended to distinguish MLS Participants who provide brokerage services to a buyer—such as identifying potential properties, arranging for the buyer to tour a property, performing or facilitating negotiations on behalf of the buyer, presenting offers by the buyer, or other services for the buyer —from MLS Participants who simply market their services or just talk to a buyer—like at an open house or by providing an unrepresented buyer access to a house they have listed. If the MLS Participant is working only as an agent or subagent of the seller, then the participant is not “working with the buyer.” In that scenario, an agreement is not required because the participant is performing work for the seller and not the buyer.
Touring a home means when the buyer and/or the MLS Participant, or other agent, at the direction of the MLS Participant working with the buyer, enter the house. This includes when the MLS Participant or other agent, at the direction of the MLS Participant, working with the buyer, enters the home to provide a live, virtual tour to a buyer not physically present.
Written buyer agreements must include:
- A specific and conspicuous disclosure of the amount or rate of compensation the Participant will receive or how this amount will be determined, to the extent that the Participant will receive compensation from any source.
- The amount of compensation in a manner that is objectively ascertainable and not open-ended.
- A term that prohibits the Participant from receiving compensation for brokerage services from any source that exceeds the amount or rate agreed to in the agreement with the buyer; and
- A conspicuous statement that broker fees and commissions are not set by law and are fully negotiable.
Efforts are underway to make sure the WB buyer agency agreements meet these requirements, and to create a showing agreement for use with relationships other than buyer agency. See the NAR settlement FAQs at the button below.
