Broker Commission Disputes: New Enforcement Trends

Broker Commission Disputes: New Enforcement Trends & Contract Litigation Involving South Florida Agents

Commission disputes are surging into 2025–2026 as South Florida agents, brokers, and clients adapt to sweeping policy changes stemming from national settlements and updated MLS rules. Below is a practical overview of what changed, how enforcement is evolving, and where contract litigation is most active—plus steps to reduce risk before a dispute turns into a lawsuit.

What Changed in 2024–2025 (and Why It Matters Now)

• Offers of compensation are prohibited in the MLS. Pursuant to the National Association of Realtors’ 2024 policy changes, MLS participants may not publish offers of compensation to buyer representatives in any MLS field. See NAR’s policy summary and reminders:
  NAR 2024 MLS Changes and
  NAR Practice Change Implementation (Aug. 17, 2024).
• Written buyer agreements are required before showings. Agents working with buyers must use written agreements that specify services and compensation arrangements—off-MLS and fully negotiable (NAR Settlement FAQs).
• Florida-specific forms and guidance updated in 2025. Florida Realtors issued new compensation forms and FAQs to memorialize off-MLS agreements and educate members on commission flexibility and dispute pathways:
  Florida Realtors: MLS Compensation Changes and
  Florida Realtors: Compensation/Commission Library.
• Local rulebooks reflect the changes. For example, the Miami REALTORS® MLS rules include the 2024 policy effective dates and 2025 updates:
  Miami MLS Rules (updated Aug. 21, 2025).
• Federal antitrust scrutiny continues. National coverage and government filings outline the shift toward negotiated, off-MLS compensation and heightened competition:
  AP: NAR settlement and policy overhaul,
  Axios Tampa Bay: New Rules in Florida,
  U.S. DOJ Antitrust: Appellate Briefs (Real Estate matters).

Where Disputes Are Emerging in South Florida

• Earned vs. payable commission: Whether a listing or buyer-broker agreement defines commission as “earned” at contract, at closing, or upon performance—and what happens when a deal collapses.
• MLS vs. contract conflicts: Old templates that referenced MLS cooperative compensation now clash with 2024 policy. If the listing packet, buyer agreement, and addenda don’t match, disputes follow.
• Dual/competing claims: Two brokers claim the same buyer or argue “procuring cause,” especially where private off-MLS compensation terms differ from expectations.
• Termination and withdrawal: Sellers withdraw listings or switch brokerages; agents claim entitlement based on protection periods or ready-willing-able buyer production.
• Team/agent split disputes: Internal commission-split fights between brokers and associated licensees often bypass FREC and head straight to civil court, per Florida guidance (Florida Realtors Commission Library).

Enforcement & Compliance Trends

• MLS compliance actions: Local associations are policing prohibited compensation fields, remarks, and attachments. Repeated violations risk fines or access issues (Miami MLS Rules).
• Written buyer agreements: Missing or vague buyer agreements undermine claims for payment and are drawing scrutiny in arbitration, mediation, and litigation (NAR FAQs).
• FREC’s role is limited in pay disputes: The Florida Real Estate Commission does not compel commission payments between brokers/agents; these are civil contract matters (FREC/DBPR and
  Florida Realtors guidance).

Risk-Reduction Checklist for South Florida Brokerages

1. Update all templates: Replace pre-2024 language that references MLS-posted compensation. Ensure listing and buyer agreements clearly state when and how compensation is earned, negotiated, and paid (off-MLS).
2. Use written buyer agreements before showings: Spell out scope of services, fee structure (flat, hourly, percentage), and who may pay the fee (NAR FAQs).
3. Align your MLS inputs with the rules: Do not place compensation in remarks, attachments, or any MLS field (NAR 2024 Policy;
   Miami MLS Rules).
4. Document procuring cause: Maintain detailed timelines of showings, offers, negotiations, and communications. These records decide many split and procuring-cause disputes.
5. Train teams on off-MLS negotiations: Compensation is now negotiated privately. Use Florida-specific forms and keep signed copies in every file (Florida Realtors FAQs).
6. Consider ADR first: Many agreements (and board bylaws) permit or require mediation/arbitration prior to litigation. Early mediation can preserve relationships and cut legal spend.

Litigation Posture: What We’re Seeing in 2025–2026

• Contract-centric claims: Breach of listing or buyer-broker agreements; disputes over “earning” events and protection periods.
• Arbitration appeals and court challenges: Parties testing arbitration outcomes in court when MLS policy intersects with private contracts.
• Antitrust-adjacent defenses: In higher-stakes matters, parties raise competition arguments informed by national policy shifts and government filings (DOJ Antitrust Appellate Briefs and
  AP coverage).

How Feinstein Real Estate Litigation & Business Law Can Help

We represent South Florida brokerages, teams, and individual licensees in commission disputes, including contract drafting and audit, pre-suit negotiations, mediation, arbitration, and state-court litigation. We also offer mediation services designed to resolve commission conflicts efficiently—often before they escalate into expensive, public litigation.

Feinstein Real Estate Litigation & Business Law
501 E Las Olas Blvd, Suite 300, Fort Lauderdale, FL 33301
Phone: (954) 767-9662
Website: www.feinsteinlaw.net