Rule changes in North Carolina for real estate agents have put Realtors in the middle of a battle between the NC Real Estate Commission, the NC Bar Association and NC Realtors, leaving agents not knowing how to proceed.
What happened?
Last Monday, July 21, 2025, NC Realtors sent out a “Realtor® Rundown” article discussing the changes to the rule about Buyer Agent Compensation (BAC) being included in the standard Offer To Purchase and Contract (form 2-T) which I will refer to in this article as “the OTP.”
Let’s dive into some details:
- The law, Senate Bill 609 and Session law 2025-52 was enacted on July 2, 2025. The law requires the North Carolina Real Estate Commission to adopt a rule allowing Realtors and other licensees to add BAC to the OTP.
- The current NC Real Estate Commission rule 58A.0112(b) states, “A broker acting as an agent in a real estate transaction shall not use a preprinted offer or sales contract form containing: (1) any provision concerning the payment of a commission or compensation, including the forfeiture of earnest money, to any broker of firm; or (2) any provision that attempts to disclaim the liability of a broker for his or her representation in connection with the transaction.”
- North Carolina is the only state that does not allow the Buyer Agent Compensation to be addressed in an OTP.
- Prior to the passage of the law, the NC Real Estate Commission submitted a rule change to allow the BAC to be negotiated in the OTP.
Why does this matter?
In August 2024, the National Association of Realtors (NAR) settled a lawsuit that accused Realtors® of colluding to raise home prices by including Buyer Agent Compensation in the sale price.
Sellers were suing because they were paying an agent to theoretically, negotiate against them.
Since the advent of Buyer Agency in the late 1980s and early 1990s, the payment to the Buyer Agent was made from the closing proceeds from the seller side. Often, the seller would pay the listing company the full compensation and the listing firm would share that compensation with the buyer agent company.
New rules for Realtors®
Beginning in August 2024 after the settlement, Realtors made adjustments as part of the settlement.
First, the Buyer Agent Compensation was no longer allowed to be shared publicly. This was a problem because Buyer Agents could be working and not knowing how much they would be paid.
Second, NAR required all Realtors® to enter into a Buyer Agency Agreement BEFORE showing the first home to a prospective buyer. That means that sometime Buyers were asked to sign an agreement to work with an agent before they had even met them face to face. That created challenges for agents but most have adapted to that change a year later.
NC Realtors updated their forms to provide an “Exclusive” Buyer Agency Agreement (form 201), a Property Showing Agreement (form 202) and a Non-Exclusive Buyer Agency Agreement (form 203) to give Realtors more options in how they handled new clients.
Because of the NC Real Estate Commission Rule preventing agents from including that BAC in their offers, NC Realtors created form 220, the Cooperating Compensation Agreement. This form is signed by the Buyers, Sellers and both agents in the transaction to clarify the amount of the BAC being paid at closing and whether the listing company or the Seller will pay it.
OTP updated July 1, 2025
Because many Realtors were in an uproar about the extra steps that had to be taken before showing a home and writing an offer to confirm the amount of BAC, NC Realtors updated the OTP to include “Seller Concessions” on the front page of the contract.
The idea was that agents could use this part of the form to include the BAC as part of any other closing costs the Seller would pay on behalf of the Buyer.
After that form was released to North Carolina Realtors on July 1, the new law went into effect, which overrides the NC Real Estate Commission Rule.
That means that North Carolina Realtors can now include Buyer Agent Compensation in their offers to sellers.
What are the challenges and concerns with this new law?
There are many questions to ask about the new law.
- Why did the law need to be changed if the Buyer Agent Compensation could already be included in the new form?
- Buyers may not want the Seller to know how much they are paying their agent.
- The OTP has traditionally been seen as a contract between the Buyer and Seller. Including BAC could make the agents a party to the transaction.
- North Carolina Realtors have a Fiduciary responsibility to their clients, meaning the client interest is ahead of the agent interest. If an offer is being negotiated and is held up based on the compensation, are the agents in violation of those fiduciary responsibilities?
- Form 220 was created to NOT be a part of the contract. If agents begin to included it as part of the contract, that could cause collateral damage to other terms in the contract.
- In the past, the NC Bar Association has been against having the compensation included in the OTP. There is no indication that has changed. The view is that the Buyer and Seller are under contract with their agents through the Listing Agreement and Buyer Agency Agreement before they create the Contract, therefore a third party beneficiary does not need to be included in the OTP.
- The forms provided by NC Realtors are jointly approved with the NC Bar Association. They both have copyright of the forms. Based on that, one organization can’t make changes to any form without the approval of the other party.
- It is possible that NC Realtors could choose to eliminated the joint form in this case and create all of the forms on their own. That would put NC Realtors and the NC Bar Association at odds with each other and create a massive legal struggle.
Reminders for Realtors and licensees
Real estate companies can always have an attorney draft addenda to be included in the OTP. There is risk having an attorney do so, because it may or may not hold up in court. That is why the joint forms have been so popular; they get consensus from both organizations on what the legal path is.
Real estate licensees in North Carolina are NOT allowed to “strike through,” edit or make handwritten adjustments to pre-printed part of the OTP. Doing so is considered to be the practice of law by the NC Real Estate Commission and could lead to disciplinary action against the offending licensee.
If a licensee is going to make adjustments to the pre-printed form, they should have an attorney look at it and provide the exact language to be used.
Realtors should NEVER “insert custom language” into a contract form without consulting with an attorney.
What is next?
The NC Real Estate Commission has already proposed the rule change as ordered by the new law. As a result, the limitation of BAC in a contract will go away.
However, there is still much to be decided. Once that it approved, the Forms Committee will convene with Realtor and NC BAR representatives to decide how to proceed next.
They can choose to do nothing and continue as has been done with the new OTP.
They can choose to create a new addendum to be attached to the OTP or they could choose to rewrite the OTP to include a blank for Buyer Agent Compensation.
In the meantime, there will be some real estate companies that choose to have their own custom form made by an attorney. With that, if the majority of the NC BAR is against having the BAC in the contract as discussed above, will attorneys be willing to write that custom addendum?
The Bottom Line
Sometimes it pays to be patient and wait to see how something plays out. Just because you CAN do something, doesn’t mean you SHOULD.
Anytime a major change like this takes place, it causes confusion. Those that seek to fully understand all the consequences of their actions will come out on top in the long run.