Buyer Commissions in Nevada Probate: NAR Settlement Conflict

Realtor commissions for buyers under Nevada Probate Code are now in question in the wake of the National Association of Realtors’ Settlement.

Here is the issue in a nutshell: Nevada Revised Statutes (NRS) provide commissions are to be determined in accordance with the listing agreement and are Probate Court confirmed. But since the National Association of Realtors (NAR) Settlement effective date of August 17, 2024, commissions paid to realtors representing buyers (Buyer Commissions) are identified in the Residential Purchase Agreement (RPA).  In essence, the NRS says commissions must be identified in the list agreement, yet the current solution in Nevada after the NRA Settlement is to identify Buyer Commissions in the RPA.  In the author’s opinion, Buyer Commissions identified in the RPA is not in compliance with the NRS and thus cannot be Probate Court confirmed. The result is no Buyer Commissions can properly be paid.

Applicable language in the specific NRS in play is as follows:

“[U]pon confirmation, the real estate commission must be divided between the listing agent and the agent, if any, who procured the purchaser to whom the sale was confirmed, in accordance with the listing agreement.” NRS §148.120 (2009).

Author’s understanding is current interpretation in Nevada of the NAR Settlement is to disclose Buyer’s Commissions in the RPA.

While the NRS are to be construed to enforce the intent of the Nevada Legislature (i.e. pay commissions to realtors), where there is plain language in the statute, such language must be followed.  That means, Buyers Commissions must be disclosed in the listing agreement, NOT in the RPA. According to the NAR Settlement, Buyer Commissions cannot be disclosed in the listing agreement.  This appears to be an irreconcilable difference placing Buyer Commissions in question. 

Further, buyer and seller commissions paid in a probate sale of real property MUST be Probate Court confirmed or in compliance with the NRS. That means any agreements meant to get around the NRS requirements is VOID and unenforceable.

The apparent result from the NAR Settlement not considering Nevada Probate Law, until there is an acceptable solution satisfying both, Buyer Commissions are at significant risk of not being paid.

By: Kirk D. Kaplan, Esq., CPA, Crest Key Legal and Accounting