The Ten: The outsider who took on forms — and then NAR 

Editor's note: In this year of evolution — much of it mandated by legal challenges — a handful of people and themes have emerged as defining forces. Real Estate News has selected the top newsmakers of 2024, based on their industry impact and influence. They are The Ten

It all began with a convoluted buyer agreement form. After reading the California Association of Realtors' draft agreement, Tanya Monestier, a professor at the University at Buffalo School of Law, concluded that no consumer should have to wade through it.

Monestier, who specializes in contract law, was dismayed by the forms being rolled out following the National Association of Realtors' settlement. But she had no idea that her report on C.A.R.'s buyer agreement, commissioned by the Consumer Federation of America, would end up taking her down a real estate industry rabbit hole.

'Wrestling with an octopus'

"I started off just interested in the pure consumer protection stuff," Monestier said in a phone interview earlier this month. But as she dug into buyer forms and listing agreements, she realized the contracts weren't just confusing. Some also appeared to contain "provisions that telegraph how realtors plan to circumvent the NAR Settlement," she wrote in her report for the CFA. 

"So it went from, 'These are bad forms because they are unintelligible,' to 'These forms are foreshadowing what is happening in the industry with all the workarounds.'"

After looking at dozens of agreements and training materials from 19 state associations, she uncovered even more issues. 

"I felt like this whole thing has become like wrestling with an octopus."

Taking on the NAR settlement

That wrestling match soon led Monestier into a bigger arena. It wasn't just the forms that troubled her — it was the settlement that preceded them. NAR's $418 million deal represented "the worst of all possible worlds," she wrote in a 136-page objection, arguing that it will only cause more confusion for consumers. "In the real world, the implementation of the settlement has been a disaster." 

Monestier also objected to the attorney fees, which total one-third of the $1 billion settlement fund, and to the judge's ruling that objectors must physically appear in court in order to have their objections considered. Several other objectors voiced support for her filing. 

That's put her in the unenviable position of ruffling the feathers of nearly everyone involved in the case.

Her legal expertise and lengthy objection were not enough to sway U.S. District Court Judge Stephen Bough, but her arguments have led to discussions and reflections within the real estate industry itself. They also prompted the plaintiffs' attorneys to clarify that, although they were in favor of the settlement, they agree that workarounds shouldn't be allowed — something for agents and brokerages to keep in mind as they navigate the post-settlement world.

Continuing to push for change

The NAR settlement may have been approved, but Monestier's fight isn't over. Last week, she joined several other objectors in appealing the settlement to the U.S. Court of Appeals Eighth Circuit.

If the appeal is not successful, she's hoping that the substance of her arguments can still spur changes in the industry. An area of particular concern is the workarounds mentioned in her objections, which she believes are a violation of the settlement. They include renegotiating for a higher commission, taking bonuses or putting together property-specific agreements after a seller's offer of compensation is known. 

"I viewed myself as someone that would like to sound the alarm on this," Monestier said. "By filing an objection, I would get this on the record so that it was out there in the public domain and could be taken seriously."

At odds with the industry, but looking for common ground 

Monestier's criticism of association forms and the NAR settlement have made her unpopular with some in the industry who feel she is just another outsider attacking their profession. 

She's had conversations with some of those who disagree with her, and she said they've been helpful, providing useful context about the industry. And she has tried to be helpful in return, creating a draft buyer agreement that aims to balance the needs of consumers and agents.

"The thing that I really appreciate is that a lot of people — not all, certainly — but a lot of people have been very kind, even when they don't agree with my position," Monestier said.

"I think everybody fundamentally deep down, even though they have personal interests, they do care about the buyers and sellers. I think focusing on that commonality is important."