If a seller has approved a listing firm to offer compensation to cooperating firms and the seller receives an offer where the buyer is asking the seller to pay the buyer's firm's fee, a seller could choose to counter that out. There are a few factors to consider when presenting an offer where the buyer is asking the seller to pay the buyer's firm's fee. 

One factor to consider is whether there is a firm-to-firm compensation agreement in place when presenting that offer. A seller's approval of an offer of compensation in the listing contract is not an agreement to pay another firm. The seller is just saying that out of the total commission the seller is going to pay the listing firm, the seller approves of the listing firm offering some of that commission to cooperating firms. If a cooperating firm entered into a compensation agreement with a listing firm and a buyer submitted an offer asking the seller to pay the buyer's firm's fee, the listing firm could explain to the seller that there already is a compensation agreement in which the listing firm is going to pay the buyer's firm, and that the seller could counter that provision in the offer. 

If there is not a firm-to-firm compensation agreement and the buyer submits an offer asking the seller to pay the buyer's firm's fee, the listing firm could reach out to the buyer's firm and offer to enter into a firm-to-firm compensation agreement, and if successful, the seller could counter that provision out. If there is not a firm-to-firm compensation agreement, the listing firm could consider amending the amount of commission it is charging the seller, and the seller could accept the offer where the buyer is asking the seller to pay the buyer's firm's fee. 

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For more information related to the NAR lawsuit and settlement agreement, see the WRA's antitrust resources webpage to see information about the practice changes, Wisconsin real estate practice videos and FAQs, access to the revised forms, and recorded Legal Update Live videos. For more information from NAR, see the NAR webpage titled The Facts for REALTORS^®.  

It depends on the transaction. 

If the buyer is a customer, then a compensation agreement between the listing firm and the subagent firm is the way to go.

If a buyer has buyer agency, and the buyer's firm and the listing firm enter into a compensation agreement where the amount of compensation being offered by the listing firm is enough to eliminate what the buyer owes, then the compensation agreement should be all that is needed. 

If the listing firm is not offering any compensation and a buyer has a buyer agency agreement with a firm, the buyer can use the provision in the offer to ask the seller to pay the buyer's firm's fee. 

If the listing firm is not offering any compensation and an agent is working with a buyer who is a customer, the agent cannot suggest that the buyer use the provision in the offer to ask the seller to pay the firm. When an agent is working with a buyer who is a customer, the agent is a subagent of the listing firm and cannot place their interests ahead of the seller's interest. When working with a buyer customer, the agent can try to negotiate a firm-to-firm compensation agreement. 

If a buyer has buyer agency, and the buyer's firm and the listing firm enter into a compensation agreement where the amount of compensation being offered by the listing firm is not enough to eliminate what the buyer owes, the buyer's firm and the listing firm can enter into a compensation agreement, and the buyer could use the provision in the offer to purchase to ask the seller to pay the remainder of the buyer's firm's fee. 

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For more information related to the NAR lawsuit and settlement agreement, see the WRA's antitrust resources webpage to see information about the practice changes, Wisconsin real estate practice videos and FAQs, access to the revised forms, and recorded Legal Update Live videos. 

Cooperation and compensation are not the same.

Cooperation

A firm could not make private or public remarks that it does not offer cooperation with a firm or type of firm. Not only is this a violation of the terms of the WB Listing Contract, but it is a violation of the REALTOR^® Code of Ethics. 

If a seller instructed a firm not to cooperate with certain firms or a certain type of firm, ideally the seller and the firm would identify that as non-confidential information in the listing contract and the firm could communicate that in the MLS. 

Lines 161-168 of the WB-1 Residential Listing Contract — Exclusive Right to Sell provide:

Cooperation, Access to Property or Offer Presentation

The parties agree that the Firm and its agents will work and cooperate with other firms and agents in marketing the Property, including firms acting as subagents (other firms engaged by the Firm - see lines 135-139) and firms representing buyers. Cooperation includes providing access to the Property for showing purposes and presenting offers and other proposals from these firms to Seller. Note any firms with whom the Firm shall not cooperate, any firms or agents or buyers who shall not be allowed to attend showings, and the specific terms of offers which should not be submitted to Seller: __________________________________________________

CAUTION: Limiting the Firm's cooperation with other firms may reduce the marketability of the Property. 

NAR Code of Ethics, Article 3:

REALTORS^® shall cooperate with other brokers except when cooperation is not in the client’s best interest. The obligation to cooperate does not include the obligation to share commissions, fees, or to otherwise compensate another broker. (Amended 1/95)

Compensation 

There should not be any discussion of compensation at all on the MLS. Saying the firm does not offer compensation to a type of firm implies an offer of compensation to a different type of firm, which could be seen as a violation of the settlement terms. Saying the firm does not offer compensation at all to anyone could be seen as an offer of compensation of $0, which could be seen as a violation of the settlement terms. The terms of the settlement agreement specify that MLS participants are prohibited from making an offer of compensation on the MLS even if a number is not specified. 

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For information relating to the NAR proposed settlement agreement and practice changes, see the WRA's antitrust resources. On that page, you will find Wisconsin real estate practice FAQs and a recorded Legal Update Live video from August 7, 2024. 

The concern with both suggestions is one could argue the firm's commission is not stated in a way that is objectively ascertainable and not open-ended, in violation of the terms of the NAR settlement agreement. There will be attorneys looking for firms that are practicing in violation of the terms of the settlement and inviting additional litigation. Practicing in a way that is not in compliance with the terms of the settlement agreement means a firm loses the protection from litigation offered by the settlement agreement. 

NAR FAQ #75 provides guidance about how a buyer's firm's compensation must be stated to be in compliance with the terms of the settlement agreement. 

75. In the buyer agreement, can buyers and buyer brokers agree to a range of compensation?

• No. Under the settlement, any compensation agreed to in the written buyer agreement must be objectively ascertainable and not open-ended.
• For example, a written buyer agreement cannot have a commission that is “buyer broker compensation shall be whatever amount the seller is offering to the buyer” or "between X and Y percent." 
• Importantly, NAR policy will not dictate the amount of compensation agreed between buyers and buyer brokers (e.g., $0, X flat fee, X percent, X hourly rate). (Updated 7/15/2024) 

All NAR FAQs can be found at www.nar.realtor/the-facts/nar-settlement-faqs. 

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For more information related to the NAR lawsuit and settlement agreement, see the WRA's antitrust resources webpage to see information about the practice changes, Wisconsin real estate practice videos and FAQs, access to the revised forms, and recorded Legal Update Live videos. 

It is the job of the MLSs to enforce the written buyer agreement requirement under the settlement agreement. MLSs have the right to ask for copies of agreements to fulfill that responsibility, but the listing agents do not.

In the Cooperation, Access to Property and Offer Presentation section on page 1 of the listing contract, the seller agrees that the broker will cooperate and work with other agents in marketing the property, including subagents and buyer's brokers, except as specified in the blank line near the end of the section. The listing broker may not unilaterally, without the seller's instruction or knowledge, condition or limit access for showing purposes. The listing contract instructs the seller to use the blank line to "Note any brokers with whom Broker shall not cooperate, any brokers or buyers who shall not be allowed to attend showings, and the specific terms of offers which should not be submitted to Seller." If a seller has provided named buyers, the listing broker would need to meet the seller's expectations and vet all potential buyers.

Wisconsin license law does not specifically require a subagent to provide a copy of the Disclosure to Customers form. Likewise, there is no statutory obligation for a copy of the written buyer agency agreement. Although a listing firm may request documents, neither the law nor the settlement agreement requires it. In addition, there may be confidential information contained in the disclosure or buyer agency agreement that the buyer does not want shared with the listing agent and/or seller. 

There may be an argument, based on the REALTOR^® Code of Ethics, that a cooperating firm, as a subagent of the listing firm, would provide a copy of a disclosure to customers as a fact pertinent to the transaction, under Standard of Practice 3-5 in the Code of Ethics. This provision would not apply to a pre-agency showing agreement because the cooperating agent is working in pre-agency and not yet subagency. Standard of Practice 3-5 provides:

“It is the obligation of subagents to promptly disclose all pertinent facts to the principal’s agent prior to as well as after a purchase or lease agreement is executed. (Amended 1/93)”

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For more information related to the NAR lawsuit and settlement agreement, see the WRA's antitrust resources webpage to see information about the practice changes, Wisconsin real estate practice videos and FAQs, access to the revised forms, and recorded Legal Update Live videos.