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Q: In advance of the changes that will be effective as of August 17, 2024, in response to the NAR settlement agreement, I was wondering whether cooperative compensation can be made a condition of the buyer broker agreement. In other words, can I include a clause that says I will only show properties where at least 2% cooperative compensation is being offered? 

A: No, making a listing agent or seller’s offer of cooperative compensation a condition of representing a buyer would not be permitted. The buyer is free to request that buyer’s agent only show properties where cooperative compensation is being offered, but the buyer also has the right to change their mind about that condition; a buyer’s agent cannot enforce such a provision against a buyer if the buyer wants to see properties that do not offer cooperative compensation. Just as before the NAR settlement, it would be a violation of the Code of Ethics to decline to submit an offer or otherwise prevent a deal from coming to fruition due to the cooperative compensation, or lack thereof, being offered. 

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