Real Estate Law · September 11, 2026 · 8 min read
Yesterday the Fifth Circuit Court of Appeals upheld the dismissal of a lawsuit challenging the National Association of REALTORS® over its so-called "three-way agreement" requirements. The panel found no antitrust injury tied to MLS access and association membership rules.
If you're shopping for homes in Harford County or trying to sell your house in Baltimore City right now, you might be wondering: does this affect me?
Short answer: probably not directly. But it's worth understanding what just happened, because the legal landscape around real estate commissions and buyer representation has been shifting under our feet all year.
The case centered on NAR's requirement that to access an MLS, a brokerage has to be a member of NAR, a state association, and a local board. Plaintiffs argued this "three-way" membership bundle was anticompetitive—forcing brokers to pay dues at all three levels just to show their buyers what's for sale.
The Fifth Circuit wasn't convinced. The court found that the plaintiffs didn't suffer the kind of antitrust injury you need to have legal standing. In plain English: they couldn't prove they were harmed in a way antitrust law cares about.
This is separate from the big NAR settlement that went into effect just two days ago, on September 10, 2026. That settlement—stemming from the Sitzer | Burnett and Moehrl cases—changed commission practices nationwide. It required buyer agents to have written agreements before touring homes and banned offers of compensation on the MLS.
The Fifth Circuit ruling doesn't undo any of that. It just says this particular challenge to membership rules didn't hold water.
I spent 20 years in education before I became a realtor. One thing I learned: context is everything. A headline that says "Court Rules Against NAR Challengers" sounds like a big deal. But when you read the opinion, it's narrow. It's about standing and membership structures, not about how you and I negotiate on a Tuesday afternoon in Bel Air.
What does matter to you right now, whether you're buying in Montgomery County or selling in New Castle County, Delaware, is the new world we've been living in since Tuesday.
Since September 10, every buyer I work with has to sign a written buyer agency agreement before we tour a single home together. I wrote about this two days ago, and I've been walking clients through it ever since. It spells out what I do for you, how I get paid, and what happens if the seller doesn't offer compensation.
The Fifth Circuit decision doesn't change that requirement. It doesn't roll back the settlement. It just confirms that one avenue of legal attack—challenging the three-way membership structure—didn't succeed.
Let me pull this back to your kitchen table.
You call me because you want to see a Cape Cod in Harford County. Before we schedule the showing, we sit down (or hop on Zoom) and I walk you through a buyer agency agreement. It covers:
It's not a lifetime commitment. It's not a trap. It's a teaching moment—because now you know, in writing, what I owe you and what you can expect.
I've had exactly zero clients balk once I explain it. Most say, "Oh, that makes sense. I should know what I'm agreeing to."
Real estate is one of the most heavily regulated industries in the country, and for good reason—most people's wealth is tied up in their home. When something smells anticompetitive, lawyers show up.
The Sitzer | Burnett verdict last year (damages later reduced on appeal, then settled) sent shockwaves through the industry. Suddenly everyone was asking: are buyer-agent commissions baked into home prices unfairly? Do sellers have a choice? The NAR settlement was the industry's answer: fine, we'll make compensation clearer and require written buyer agreements.
This Fifth Circuit case was a different angle—attacking the membership structure itself. The court said no, that's not an antitrust problem you can sue over. But it doesn't mean the broader scrutiny is over. The Department of Justice watches this industry closely, and state legislatures are paying attention too.
Maryland, DC, Pennsylvania, and Delaware each have their own regulations on top of the national rules. Maryland's Real Estate Commission enforces disclosure and agency law. Pennsylvania has its own Real Estate Commission with slightly different rules. In DC, you're dealing with the Department of Licensing and Consumer Protection. Delaware's Real Estate Commission has its quirks too.
If you're working across state lines—say, living in Cecil County and eyeing a job in Wilmington—you need a realtor who knows the local rules and can keep you out of trouble.
Here's my teacher-brain checklist for buyers and sellers in Maryland, DC, PA, and DE this fall:
Buyers: Before you tour any home, expect to sign a buyer agency agreement. Read it. Ask questions. Make sure you understand who pays your agent and what happens if you want out. Start browsing listings here and reach out when you're ready to talk terms.
Sellers: Compensation is no longer advertised on the MLS. You can still offer it—most sellers do, because it widens the buyer pool—but now it's negotiated separately and disclosed in your listing agreement. Talk to your listing agent (hi, that might be me) about strategy. In today's market, with inventory at a six-year high, you want every competitive edge.
Everyone: Don't let headlines spook you. The Fifth Circuit ruling is insider baseball. What matters is the ground-level reality: clearer agreements, more transparency, and frankly, a better experience for you. If someone tries to show you a home without a signed agreement, walk away. They're not following the rules.
Speaking of ground-level reality, let's talk money.
Freddie Mac reported this week that the 30-year fixed mortgage rate averaged 6.76% for the week ending September 9. But that survey averages four business days, and by Thursday, rates had jumped to 7.07% as oil hit $100 a barrel and inflation data rattled the bond market. I wrote about that yesterday, and it's ugly. Add in homeowners insurance at a record $209 per month nationally, and carrying costs are brutal.
What does this have to do with a court case about MLS membership? Nothing, and everything. Legal changes happen in a vacuum; your budget doesn't. When I sit down with a buyer in Anne Arundel County, we're not just talking about agency agreements—we're stress-testing your monthly payment at 7%, gaming out appraisal gaps (I wrote a whole post on that two days ago), and figuring out if you're better off renting for another year.
The law sets the rules. The market sets the stakes.
I'm a REALTOR®, not an attorney. Everything I've just laid out is my reading of the news and my experience helping clients navigate these changes. This is general information, not legal advice—for your specific situation, please consult a licensed real estate attorney.
If you're in the middle of a transaction and something feels off—maybe the other side's agent is pressuring you to waive your buyer agreement, or a seller is balking at paying any compensation at all—pick up the phone and call a real estate lawyer. In Maryland, the Maryland State Bar Association can help you find one. Pennsylvania has a similar lawyer referral service. DC and Delaware do too.
I'll guide you through the deal. I'll teach you what each form means. But I can't give you legal advice, and I won't pretend to.
The dust is still settling from the September 10 changes. I'm watching to see if buyer behavior shifts—do people hesitate more now that they have to sign something upfront? So far, no. If anything, the conversations are richer. People ask better questions.
The Fifth Circuit ruling won't reverse that trend. It's a footnote in a much bigger story about transparency and fairness in real estate. NAR's membership model survives this round. The settlement rules remain in force. And you and I still have to navigate a market where rates are north of 7%, inventory is climbing, and sellers outnumber buyers by 58% nationally.
If you're in Harford, Cecil, Baltimore County, Montgomery, Howard, Anne Arundel, Charles, or Baltimore City—or across the line in York, Lancaster, New Castle, or DC—let's talk. I'll walk you through the new paperwork, explain what the court rulings mean (and don't mean), and help you figure out if this chaotic market is your moment to move or your cue to wait.
The law keeps evolving. Your plans shouldn't have to wait for perfect clarity. Let's just make sure you understand what you're signing and why.
Katrina Kirton Sherrod, REALTOR® · Samson Properties · Licensed in MD, DC, PA & DE · 443-616-9770 · Katrina@kkstherealtor.com
“The problem with waiting for the perfect house is that someone imperfect already bought it.” — Anonymous open-house guest