Those who cannot remember the past are condemned to repeat it.

George Santayana’s 1905 quip couldn’t feel more prophetic today.

Almost three years ago, I asked the then-president of CAR (California Association of Realtors) what was being done in Sacramento to address the rising clamor for agency commission reform. At the time, class-action lawsuits were brewing, fueled by public outcry demanding transparency and change in how real estate operates. Spoiler alert: he had no concrete solutions to offer.

I agreed then—and still do—that reform was needed. No industry is immune to societal and technological evolution.

The long-standing tradition of sellers paying a percentage of the sales price to buyer agents was certainly flawed. It created a perverse incentive where higher prices meant higher commissions for buyer agents. I've championed flat-fee compensation for years because, let’s face it, rewarding agents for driving up prices isn’t exactly buyer-friendly. But one voice in a hurricane of opposition gets drowned out, no matter how right it might be.

Fast forward to today, and it feels like we've hurled the baby out with the bathwater in the wake of the DOJ/NAR settlement. Yes, consumers deserve transparency—they absolutely should know who pays what, to whom, and why. But vilifying an entire industry and enacting sweeping reforms without a nuanced understanding of why these practices existed is a recipe for chaos. Another spoiler alert: the unintended consequences will likely be worse than the problems they aimed to fix.

Having worked in real estate since the mid-1980s, I bring a little perspective to this conversation. Many of the practices now under scrutiny were created with consumer protection in mind. Back in the day, well before Zillow and Redfin democratized data, buyers relied entirely on agents for market knowledge. But let’s not kid ourselves—bad actors have always existed, and the internet hasn’t exactly become a foolproof haven of accuracy.

Consider this: Before the 1990s, buyer agency wasn’t even a thing. Every agent, by law, represented the seller. In 1988, Barry Miller, a forward-thinking Denver Realtor, introduced a buyer agency protocol, acknowledging the inherent flaws in the system. But formal buyer agency rights didn’t emerge until the early 1990s. Prior to that, buyers had no fiduciary advocate. Let that sink in.

In high-cost states like California, buyers couldn’t afford to pay their agents on top of all the other purchase-related expenses. Sellers stepped in, agreeing to cover agent fees from the sale proceeds. This arrangement worked for decades, spurring competition and ultimately driving up home prices to sellers' advantage. Data backs this up: FSBO (for sale by owner) sales in 2023 averaged $310,000, while agency-assisted sales clocked in at $405,000. Even with a (now rare) 6% commission, sellers netted significantly more with agent representation. Yet, somehow, this win-win arrangement is now painted as deceptive.

The Sitzer-Burnett class action case turned this dynamic on its head. While victorious attorneys pocketed a cool $82.4 million (plus another $226.425 million for similar suits), the sellers they represented received a paltry $900 each. Meanwhile, buyers are now expected to negotiate agent fees upfront—a task most will likely botch or avoid altogether. The result? Many buyers will ask the seller’s agent to represent them, landing us right back in the 1980s where buyers had no dedicated representation. Progress? Hardly.

Brace yourselves, because this isn’t the end of the legal fireworks. Expect lawsuits from buyers who realize too late that their interests weren’t adequately represented. Worse, some buyers may forgo representation entirely, signing contracts prepared by listing agents or, in a misguided attempt at saving money, hiring well-meaning but inexperienced attorneys. Let’s just say, no one wants to see how that sausage gets made.

The bottom line? Caveat emptor—let the buyer beware. We’ve taken a massive step backward in consumer protection for home buyers, and it’s going to get messy. I’ll bring the popcorn; this show is just getting started.

All this madness underscores the urgent need for a practical, intermediary solution—something that helps buyers and sellers cut through the fog to truly understand what they’re signing, why specific terms matter, and the real-life consequences of those agreements.

Wait a minute. I am someone. And guess what? I’m going to build it. Stay tuned for updates as I roll out a plan to make home sales clearer, more transparent, and—most importantly—fair for the people at the heart of the transaction. Game. On.