Buyer Broker Agreements in Northeast Florida: What Landmark Title's Attorneys Warned Agents About — And Why Those Rules Just Became Permanent

Buyer Broker Agreements in Northeast Florida: What Landmark Title's Attorneys Warned Agents About — And Why Those Rules Just Became Permanent

On August 21, 2026, a three-judge panel of the Eighth Circuit Court of Appeals upheld the final approval of the Sitzer-Burnett class-action settlement, rejecting every objection raised against it. For real estate agents in Northeast Florida, that ruling settled a question a lot of people had quietly been waiting out: the written buyer broker agreement is not a phase. Under the settlement, the National Association of Realtors agreed to pay $418 million over four years, to require written buyer broker agreements, and to prohibit offers of cooperative compensation from appearing on Realtor-affiliated multiple listing services. Those practice changes now stand with appellate finality.

Which makes the conversation Tracy Hayes recorded days before those rules first took effect more useful now, not less. David Heekin, CEO and owner of Landmark Title, and Rose Alberre, the firm's general counsel and a real estate attorney of more than twenty years, sat down for a special edition of the Real Estate Excellence Podcast to answer the questions agents were flooding them with — and almost none of what they said has been overtaken by events.

"This settlement did not prohibit sellers from paying. It did not prohibit listing agents from paying. It did not say that we can't do this anymore," Alberre said. "So we're still getting — I mean, the result is the same, the path is different." Two years later, the path is the part that still trips agents up.

Where the Rules Actually Came From — And Who Enforces Them

Agents throw the word antitrust around without much precision, so Hayes opened by asking what it actually meant in this context. Alberre traced it back to the jury: the Sitzer-Burnett verdict of $1.78 billion rested on the argument that there had been a conspiracy to fix brokerage commissions, and that sellers were the ones absorbing the cost of a structure they had little visibility into. The remedy was not a price ceiling. It was transparency and documented negotiation.

The enforcement question matters just as much and gets asked far less. Neither the Department of Justice nor a court is checking whether an individual agent has a signed agreement on file. "For now," Alberre confirmed, the local MLS carries responsibility for compliance and enforcement of the practice changes. Heekin was blunt about what that means in practice: fines are real, and agents have already been penalized for workarounds — including one who put an offer of compensation in the private remarks field of a listing.

Compensation itself remains fully negotiable and can still be communicated in any number of ways, as long as the MLS and its IDX feed are not the vehicle. Heekin ran through the list: a flyer in the box, the sign, a sheet taped to the front door, the kitchen counter, the brokerage website, a direct email or text between agents. Alberre also pointed agents to a purpose-built tool for documenting those negotiations, thepieslice.com, which generates and preserves the compensation conversation and produces a completed compensation agreement ready for signature before a buyer ever tours a home.

"Objectively Ascertainable" Is the Whole Ballgame

If there is one phrase from the episode worth committing to memory, it is that one. Compensation stated in a buyer broker agreement cannot be open-ended, and the settlement itself supplies the examples of what fails.

"It cannot be what's — objectively, it has to be objectively ascertainable," Alberre said. "It cannot be open-ended. The settlement agreement actually gives an example saying that it can't be whatever amount the seller offers. It cannot be between X percent and Y percent. It can't be up to an amount."

Paired with that is the ceiling rule, which is the part agents most often misread in their own favor: compensation received from any source cannot exceed the amount agreed to and authorized in the buyer broker agreement. Hayes put the practical version of the question to them — an agent confident the seller will cover her fee, so she writes in zero. The answer was immediate. "If you put zero, zero is your number," Heekin said. "That's all you're allowed to do." Fixing it means amending the agreement before writing the offer, not after.

Florida Realtors released a set of forms to cover different stages of a buyer relationship: a property pre-touring agreement, a showing agreement, and the exclusive buyer broker agreement, which comes in versions that vary by brokerage relationship. Alberre made her preference plain — she would rather agents simply use the buyer broker agreement from the outset, because it protects the agent's compensation rather than only clearing the touring requirement. Heekin does not entirely agree, and they said so on air, which is itself instructive: brokers and attorneys in the same market read the same forms differently, and agents should confirm their own broker's position rather than assume.

Timing is the other place agents lose money. Where a seller or listing broker is paying, the compensation agreement has to be signed either before the offer goes out or at the same time, with a term in the offer making the contract contingent on that form being signed. "If you submit an offer and the seller accepts it and they don't accept the compensation agreement, you lose all that," Alberre said. "You're out."

Put the Number in the Purchase Contract

The single most practical minute of the episode came when Heekin walked through what happens at the closing table when the compensation lives only in the buyer broker agreement.

The scenario: a buyer's agent has a three percent buyer broker agreement, the seller is paying two, and the remaining one percent lands on the buyer's side of the settlement statement without ever appearing in the purchase contract. Landmark sends the ALTA statement in advance of closing. The buyer reads it, sees a charge they do not remember agreeing to, and objects.

"If we're instructed by a buyer, take that off — it's not in the contract, I don't authorize it — we're going to take it off the ALTA. We don't have a choice," Heekin said. "We're not going to hold up the closing for it. We're going to look at the selling agent and say, you've got a dispute resolution section and you've got to go do that yourself."

Alberre stopped the conversation cold at that point and told the audience to rewind the recording. Her two non-negotiables for the episode were, first, that the compensation agreement be signed before or simultaneously with the offer, and second, that the compensation be memorialized in the purchase and sale agreement itself.

The mechanics are simple. In the buyer's closing cost section, enter the dollar amount payable to the buyer's brokerage. In the seller's closing cost section, enter the seller-paid portion payable to that same brokerage. If there is not enough room, the additional terms paragraph will hold it. "That's how it is in commercial contracts," Heekin said. "Talk about transparency — it doesn't get much more transparent than that."

One clarification Alberre insisted on: putting the number in the contract does not replace the compensation agreement. The purchase contract runs between buyer and seller, and the brokerage is not a party to it and cannot enforce it. The signed agreement is still required. In addition to, never in lieu of.

The Practices That Will Still Get an Agent in Trouble

The gray area both attorneys spent the most time on was the open house, and the test they landed on has held up well. The person hosting is a representative of the seller. Answering the general questions any visitor would ask about the property does not require a buyer broker agreement. The moment an unrepresented visitor starts asking whether the seller would take less, or asks for advice, or wants an offer written, the agent has crossed into working with the buyer.

"Once you go there, stop, timeout," Alberre said. "Let's talk buyer broker agreement." Heekin added the Florida-specific wrinkle that a lot of agents forget in the moment: if you are a single agent for the seller, you cannot simply pivot, and the transition to transaction broker requires consent.

Then there was the question that produced the sharpest reaction of the hour. Hayes relayed a real one, raised in a room of forty agents: can a listing agent — or a builder — require to see a buyer's broker agreement before showing the property?

Alberre's answer went straight to the code of ethics. A listing agent works in the seller's best interest, and refusing to show a home is difficult to square with that duty. "I would not think it would be allowed under the ethics rules to condition showing a house on you showing a buyer broker agreement," she said. Heekin was more measured on whether it was prohibited and more certain about whether it was smart: "I hope that there's more of a spirit of cooperation. It's hard enough out there without agents coming at each other like that." Hayes pushed the point further, noting that refusing to let a buyer see or make an offer on a home based on that demand could invite a fair housing complaint. There is also no legal requirement to disclose the agreement — Alberre noted it is a private contract between the buyer and their broker.

Her closing list of don'ts is the cleanest compliance checklist an agent will find. Do not post a blanket statement on your website advertising that you offer buyer broker compensation on every listing. Do not use pre-printed forms with compensation already filled in, because the amount is genuinely negotiable. Do not condition a seller concession on its use for broker compensation — concessions can be offered, and a buyer can apply them however they choose, but the two cannot be linked. Do not advertise a range. Do not forget the required disclosures. And amend any listing agreement or buyer broker agreement signed before the practice changes took effect, including deleting old language conditioning MLS entry on an offer of compensation.

On the question of whether seller concessions can be used to cover a buyer's agent fee, Alberre pointed at the time to VA and FHA guidance indicating such compensation would not count toward maximum allowed contributions. Agency guidance in this area has continued to evolve since the episode aired, so confirm the current position with your underwriter before you build a deal around it.

Alberre's last warning was the one with the longest shelf life. Attorneys will send testers, the way they did in ADA litigation, to find out who is actually following the practice changes. "You don't want your name in the next round of lawsuits," she said. And the corollary, delivered as an aside that landed harder than she probably intended: "Don't put anything on social media that you wouldn't want read to a jury if you were on trial."

Two years and one appellate ruling later, the rules the industry hoped it might outlast are now permanent, and the agents who treated the forms as paperwork rather than as the mechanism that gets them paid are the ones still writing offers with exposure they cannot see. Landmark Title built a legal team that does no closings at all and exists solely to answer agent questions, and both Heekin and Alberre kept circling the same reason why. "If you add value," Heekin said, "you will always have a seat at the table."

Featuring Rose Alberre and David Heekin · Landmark Title · Real Estate Excellence × ReadTomato