278. See HUD REPORT, supra note 201. 279. One panelist who is a fee-for-service broker explains this as his "flat-fee plus" alternative, where, in addition to noting the home in the MLS and putting it on several sites, he provides the seller help once the purchaser is discovered. In addition to the flat fee cost of $495 paid at time of listing, the "flat-fee plus" option requires the seller also to pay $1,500 at closing.
at 68 (explaining the alternative). 280. In an address at the start of the Workshop, (then Performing) Assistant Attorney General Thomas Barnett observed that minimum-service laws and policies can be considered as no different from states passing a guideline that states: "When I walk into McDonald's and purchase a hamburger, I'm told that I also need to purchase some french fries, because the state has chosen that it may be misleading or misleading or bad if I only got the hamburger, paid for it and didn't understand I wasn't going to get the french fries." Barnett, Tr.
Similarly, at a recent Congressional hearing on competition in the property brokerage market, Representative Baker analogized minimum-service laws and policies to requiring a consumer to have his or her whole home painted when he or she only desired the patio painted. See Hearing, supra note 1, at 30 (statement of Rep.
Baker, member Home Comm. on Financial Solutions), available at http://frwebgate. access.gpo. gov/cgi-bin/getdoc. cgi?dbname= 109_house_hearings & docid= f:31541. pdf. 281. See Farmer, Tr. at 105 (keeping in mind that he contends versus traditional "representatives out there that deal little or no value to the deal."). 282. See Lewis, Tr. at 179 (" While some consumers might free cruise timeshare be advanced adequate to represent themselves in some or all of the steps of a transaction, most are not.").
22, 2005, available at http://realtytimes. com/rtcpages/20050422 _ dojstepsin. htm (pricing quote Texas Association of Realtors declaring that minimum-service guidelines would avoid customer confusion); Peter G. Baker, Working With a Broker: Should You Expect Less?, REAL ESTATE TIMES, Apr. 11, 2006, available at http://realtytimes. com/rtcpages/20060411 _ hirebroker. htm (" [Federal government agencies] argue that with disclosures and waivers customers need to have the ability to decline any brokerage service or responsibility.
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We do not, for instance, allow consumers to conserve money by working with medical professionals who cut expenses by not decontaminating surgical instruments or cleaning their hands."). 283. See Darryl W. Anderson, Minimum-Service Requirements in Real Estate Brokerage: A Reaction to Maureen K. Ohlhausen, ANTITRUST SOURCE, Jan. http://elliottzsmi934.theglensecret.com/some-known-details-about-what-is-the-commission-for-real-estate-agents 2006, at 3-4 (arguing that minimum-service requirements are procompetitive because they foster rate settlements before going into a representation contract over what a fee-for-service broker will charge for all the services required by law).
See, e. g., GAO REPORT, supra note 3, at 16. 285. Thorburn, Tr. at 96. 286. Farmer, Tr. at 73. 287. In addition, in reaction to an FTC questionnaire, respondents from Colorado, North Dakota, Vermont, and Washington kept in mind that grievances against restricted service brokers were minimal or nonexistent. The questionnaire is offered at http://www.
htm. 288. Our review of fee-for-service broker sites exposes that consumers appear to have prepared access to rates that fee-for-service brokers charge for additional services beyond the MLS-only option in advance of participating in a legal relationship. This finding undermines a required condition for the hold-up theory to be possible that consumers only discover the prices for additional services after they have actually participated in an unique listing contract.
Ohlhausen, Minimum-Service Requirements in Realty Brokerage: A Reply to Darryl Anderson, ANTITRUST SOURCE, Mar. 2006 (going over numerous theoretical and empirical reasons the hold-up theory does not appear to apply to fee-for-service brokerage). 289. See Farmer, Tr - what is a real estate novelist. at 71-72. 290. Kunz, Tr. at 82-83. See also Perriello, Tr. at 152 (speaking for Cendant, and mentioning that "we think that customers.
need to have the ability to pick their service designs in addition to the supplier of those services, whether they be limited service or full-service"). 291. Sambrotto, Tr. what is cap rate real estate. at 116. 292. Farmer, Tr. at 72. 293. PATRICK WOODALL & STEPHEN BROBECK, CUSTOMER FEDERATION OF AMERICA, HOW THE REAL ESTATE CARTEL DAMAGES CONSUMERS AND HOW CONSUMERS CAN PROTECT THEMSELVES (June 2006), readily available at http://www.
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pdf. 294. Id. at 4-5. 295. See, e. g., Lewis, Tr. at 178-79; Sambrotto, Tr. at 114; Farmer, Tr. at 115. 296. Whatley, Tr. at 45-46. 297. See Katherine A. Pancak et al., Property Firm Reform: Meeting the Requirements of Buyers, Sellers, and Brokers, 25 REALTY L.J. 345, 350 (1997) (keeping in mind that agency relationships can be produced by actions).
Whatley, Tr. at 48. 299. Avoiding fee-for-service listings without disclosure to buyers, nevertheless, may raise issues worrying the fulfillment of fiduciary responsibilities. 300. See supra Chapter I.B. 1. 301. Blanche Evans, Where Real Estate Associations Stand On MLS-Entry-Only Listings, REAL ESTATE TIMES, Feb. 24, 2005, readily available at http://realtytimes. com/rtapages/20050224 _ mlsentryonly. htm. 302. OHIO CODE 4735.
18 of the Revised Code and settlements carried out by a licensee pursuant to the authorization will not create or imply an agency relationship in timeshare selling team between that licensee and the customer of that special broker."). 303. VA CODE 54. 1-2132( C) (effective July 1, 2007) (" A licensee engaged by a seller in a property deal may, unless prohibited by law or the brokerage relationship, supply help to a buyer or possible buyer by performing ministerial acts.
304. WIS. CODE 452. 133 (6). 305. Sambrotto, Tr. at 90. 306. ForSaleByOwner. com Corp. v. Zinnemann, 347 F. Supp. 2d 868, 872 (E.D. Cal. 2004). 307. Id. at 879. 308. United States v. Real Estate Multi-List, 629 F. 2d 1351, 1374 (5th Cir. 1980) (" [W] hen broker participation in the [MLS] is high, the service itself is economically successful and competitors from other listing services is lacking, rules which welcome the unjustified exclusion of any broker should be found unreasonable.").
See, e. g., Thompson v. Metropolitan Multi-List, Inc., 934 F. 2d 1566, 1579-80 (11th Cir. 1991); Austin Bd. of Realtors v. E-Realty, Inc., No. Civ. A-00-CA- 154 JN, 2000 WL 34239114, at * 4 (W.D. Tex. Mar. 30, 2000). A discussion of the different private lawsuits involving declared MLS-related restraints is beyond the scope of this Report.
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For a discussion of exclusive company contracts and other types of listing contracts, see supra Chapter I.A. 2. 310. See Farmer, Tr. at 74-75; Sambrotto, Tr. at 90. 311. NAR 2005 SURVEY, supra note 38, at 29-30. 312. Austin Bd. of Realtors, FTC Dkt. No. C-4167; Information and Realty Services, LLC, FTC File No.
051-0065; Williamsburg Area Ass 'n of Realtors, Inc., FTC File No. 061-0268; Realtors Ass 'n of Northeast Wisconsin, Inc., FTC File No. 061-0267; Monmouth County Ass 'n of Realtors, Inc., FTC File No. 051-0217. 313. See, e. g., Information and Real Estate Solutions, LLC, FTC File No (how to become a real estate developer). 061-0087, at 6 (2006) (analysis to help public comment), offered at http://www.
pdf. 314. See, e. g., Austin Bd. of Realtors, FTC Dkt. No. C-4167, at 17 (2006) (problem), available at http://www. ftc.gov/ os/caselist/0510219/ 0510219AustinBoardofRealtorsComplaint. pdf. 315. Id. at 27. 316. See MiRealSource, Inc., FTC Dkt. No. 9321 (2007) (decision and order), offered at http://www. ftc.gov/ os/adjpro/d9321/ 070323decisionorder. pdf. 317. See, e. g., United Property Brokers of Rockland, Ltd., Dkt.