By now, it feels as if the National Association of Realtors’ settlement regarding commissions was struck years ago – yet its terms only went into effect in August.

Since then, real estate experts and agents across the country have been compiling data, identifying new trends, and seeking to adopt best practices as the new commission model takes hold.

As a reminder, the NAR settlement changed two fundamental components of the traditional real estate model: (1) buyer agents must have a signed agreement with their clients clearly setting forth the terms of representation and the commission that will be earned before representing the buyer; and (2) listing agents can no longer disclose cooperative commission arrangements in the Multiple Listing Service (“MLS”).

Under the settlement, commissions remain “negotiable” between the buyer and seller.

Since these changes became effective, a common practice has emerged: buyer agents contact listing agents to inquire whether the seller will pay for the buyer agent’s commission if a sale occurs.

Some sellers are open to negotiation, others agree to pay, and some remain noncommittal. Naturally, some buyers may decide to look elsewhere if they believe they will have to pay their own agent’s commission, and the seller will not cover it.

This situation raises a novel question: if a listing agent owes the client a fiduciary duty to act in the seller’s best interest, provide honest and fair advice, and maximize the seller’s financial gain from the sale – and if advising the seller not to pay for the buyer agent’s commission results in a loss of interest in the property and a lack of sale – can the seller later allege that the listing agent violated their fiduciary duty by not advising the seller to pay for the buyer agent’s commission (or at least be open to it?

After all, this advice will almost certainly reduce the pool of potential buyers interested in the property, which in turn could affect the maximum price the seller can achieve.

This is a novel question because the August changes mean best practices in terms of buyer-seller agreements are still subject to ongoing debate.

In the meantime, listing agents should carefully explain the benefits and risks of the various responses the seller can provide to initial inquiries from buyers interested in the property, and whether or not they will offer to pay the buyers’ agent commission.

The new commission parameters have created a somewhat uncertain dynamic between clients and real estate agents.

Add to that the fact that the Department of Justice is actively involved in analyzing the NAR settlement and is still weighing whether it goes far enough and whether further intervention is warranted, and the buyer-seller-agent market could remain murky for the foreseeable future.

Chandler real estate attorney Ben Gottlieb is the founder of Gottlieb Law PLC. Information: gottlieblawaz.com.