Attorney vs. Broker: What Buyers Need After the NAR Settlement

The real estate world has been rocked by the National Association of Realtors (“NAR”) settlement, a landmark agreement that’s reshaping how homes are bought and sold in the U.S. While much of the media attention has focused on commission structures and agent compensation, there’s a quieter but equally important shift happening: homebuyers must ask sellers to pay their broker fees as part of the negotiation process, making homebuyers who hire an attorney, instead of a broker, more competitive during the homebuying process. And that’s exactly why hiring an experienced real estate attorney is no longer just a smart move—it’s becoming essential.

What Changed with the NAR Settlement?

In March 2024, NAR agreed to a $418 million settlement in response to antitrust lawsuits that challenged the traditional commission-sharing model between listing and buyer agents (previously this was 3% for the broker on each “side” of a deal). As part of the settlement, several key changes took effect:

• Buyer agents are no longer guaranteed compensation via the MLS (Multiple Listing Service).
• Buyers must sign written agreements with their agents before touring homes.
• Commission negotiations are now fully transparent and separate from the listing agreement.
• Sellers now tell their listing broker what, if anything, they will pay of the buyer’s broker commission! We are seeing many sellers who will only agree to pay a 2-2.5% commission to a buyer’s broker, putting buyers at a distinct disadvantage as fewer brokers want to work with buyers.

These changes aim to increase transparency and competition, but they also introduced more uncertainty and complexity for homebuyers.

Why This Matters for Buyers

Before the settlement, buyers could rely on the assumption that their agent’s commission would be paid by the seller, because it was written into the seller’s listing agreement with their broker. Now, the industry practices have changed as a result of the NAR settlement. Buyers must:

• Understand and negotiate agent compensation.
• Sign legally binding agreements before seeing homes.
• Potentially pay their broker out-of-pocket if the seller does not agree to pay full commission to the buyer’s broker.
• Navigate a more fragmented and less standardized process.

The practical effect is that the Multiple Listing Service forms have changed and buyers can no longer be certain the seller will pay a buyer’s brokers commission. In short, homebuyers are now more exposed to legal risk and financial uncertainty—and that’s where an experienced real estate attorney can make a positive difference.

7 Reasons Buyers Should Hire a Real Estate Attorney

1. Review and Negotiate Buyer Representation Agreements

Under the new rules, buyers must sign a written agreement with their agent before touring homes. These contracts outline:

• The scope of services;
• The agent’s compensation;
• Whether the buyer or seller will pay the fee.

Hiring a real estate attorney to act in the role of a broker OR to review buyer representation agreements ensures a legal advocate reviews the fine print, ensures the terms are fair, and helps negotiate clauses that protect the buyer’s interests.

2. Clarify Commission Obligations

With commissions now negotiable and no longer “baked” in to the MLS system, buyers may be asked to pay their agent directly. This raises questions like:

• Can the commission be rolled into the mortgage?
• What happens if the seller offers partial compensation?
• Are there caps or minimums?

A real estate attorney can help buyers understand their financial obligations and avoid surprises at closing. Better yet, a buyer who hires a real estate attorney can avoid the uncertainty of negotiating buyer broker commission, and can make an offer that is more attractive to sellers.

3. Protect Against Dual Agency Conflicts

In some cases, buyers may be tempted to work directly with the listing agent to save on commission. But this can lead to dual agency, where one agent represents both sides—a situation rife with potential conflicts of interest by representing both the buyer and seller, whose goals and interests are not fully aligned, especially if a dispute arises.

An attorney acts as an independent advocate, ensuring the buyer’s rights are protected and that no corners are cut in the name of expediency. Buyers who hire an attorney to act in the role of their broker get the added protection of the very strict ethical rules that say what an attorney can and cannot do – such as avoiding conflicts of interest!

4. Navigate Complex Financing Scenarios

Some loan types—like VA loans—even prohibit buyers from paying agent commissions out-of-pocket. Others may allow commissions to be financed, but only under certain conditions.

A real estate attorney can coordinate with lenders, ensure compliance with loan requirements, and help structure deals that work within legal and financial constraints. Best of all? Using a real estate attorney makes a homebuyers’ offer more competitive by keeping the commission out of the negotiation process, allowing everyone involved to focus on the heart of the deal.

5. Review the Purchase Agreement

The purchase agreement is the most critical document in the transaction. It outlines:

• Price and terms;
• Contingencies (financing, inspection, appraisal);
• Closing timeline;
• Disclosures and warranties.

Even if a buyer has a broker, only an attorney can provide legal advice on the contract’s enforceability and implications. This is especially important since real estate brokers and agents are not licensed to practice law in most states. As a homebuyer, you will have many questions that seem simple, but turn out to be fairly complex with a legal component involved.

6. Flag and Resolve Title and Closing Issues

Title defects, unpaid liens, easements, and boundary disputes can derail a transaction. While title companies perform searches and issue insurance policies, title and escrow companies can only answer general questions. They can’t give legal advice, and don’t represent the buyer’s interests.

An attorney can:

• Review the title report;
• Explain exceptions and exclusions;
• Flag and resolve potential title problems that could arise in the future, such as encroachments, boundary issues, and the like;
• Ensure the buyer receives clear, marketable title.

Attorneys also review and explain final documents, sometimes attend the signing appointment at the escrow company, and ensure funds are properly disbursed.

7. Provide Peace of Mind in a Changing Market

The post–NAR settlement era is still evolving. Buyers are navigating new norms, unfamiliar paperwork, and shifting expectations. Having an attorney in your corner is critical, and provides:

• Legal clarity;
• Negotiation leverage;
• Protection from costly mistakes.

In a market where the rules are still being written, legal guidance is no longer optional—it’s strategic.

Real Estate Attorneys Can Save You Money

While hiring an attorney may seem like an added expense, it can actually save buyers money in the long run by:

• Catching unfavorable contract terms;
• Negotiating better deals;
• Preventing litigation;
• Avoiding commission misunderstandings.

Many sellers will see your offer as more competitive if you hire an attorney to act as your broker, because you won’t be asking for broker’s commission. The market is still competitive and the commission “ask” can be the difference between an accepted offer and being disappointed because you lost out on the perfect home for you and your family. Think of it this way: you wouldn’t buy a business without legal counsel—why buy an asset costing several hundred thousands dollars without a lawyer?

The Takeaway for Washington Buyers in a Post-NAR Market

With the new MLS forms and sellers who now get to dictate how much of a buyer’s broker commission they will pay, hiring a real estate attorney is no longer just a luxury for high-end buyers—it’s a smart move for anyone navigating this new landscape. An experienced real estate lawyer can provide a full range of services and will advocate for and protect your interests throughout the sale process, serving as your most valuable ally on the road to homeownership.