2.3 Permissible Off-MLS Bilateral Negotiations & Agreements

🎯 Key 2026 Real Estate Exam Takeaways

• Direct broker-to-broker compensation agreements negotiated completely off the MLS are legal with seller consent.
• Licensees may freely communicate regarding seller concessions or fee intent via phone, text, or email.
• All off-MLS fee sharing agreements must be documented in writing prior to closing (e.g. Form CBC).

It is critical to distinguish between what the federal antitrust settlement prohibited and what it preserved. The settlement eliminated the MLS as a utility for advertising unilateral compensation offers; it did not outlaw bilateral negotiations or commission sharing between licensed real estate professionals.

Listing brokerages and buyer brokerages remain fully entitled to enter into direct, off-MLS bilateral compensation agreements (such as California CAR Form CBC or Texas Form TXR-2402). Under these agreements, the listing broker agrees to pay a specified fee or share a portion of their total earned commission with the buyer's broker at settlement, provided the seller has authorized this arrangement in the listing contract.

Moreover, direct communication between agents outside the MLS is completely lawful. Before submitting an offer, a buyer's agent may call, text, or email the listing agent to inquire whether the seller has authorized concessions or is willing to consider paying buyer broker fees in an incoming purchase offer.

⚠️ Common Licensing Exam Traps

• Do not assume that all commission sharing is illegal; only the centralized MLS unilateral offer was abolished.
• Do not forget that a listing broker cannot share commission with a buyer broker without the seller's express written authorization in the listing contract.