On October 25 the DOJ and FTC are jointly holding a workshop on competition policy and the real estate industry. A topic that the workshop will consider is one that I have written about a few times in the past: state laws that restrict competition among buyers’ and sellers’ brokers. Licensing laws that aim to protect consumers have had the ulterior motive of discriminating against online web-based companies that enable the real estate transaction without the need for traditional real estate agents. New York is one such state with onerous licensing laws. A few months ago I filed comments in a rulemaking aimed at updating the law. Unfortunately, the NY Department of State still does not get it. One example from my comments:
the NPRM requires actual or electronic signatures. However, businesses and consumers communicate their desire to form a relationship in a multitude of ways. For communications over the Internet, consumers almost always show their assent to contractual terms by clicking “I Accept” or other similar language evidencing agreement. The AIV rules must recognize that a binding contract is formed when this online assent occurs. Indeed, courts of law routinely uphold these “clickwrap” agreements to be legally binding agreements.
Minimum service laws are also protectionist measures aimed to hurt online competitors. The Michigan state legislature has proposed legislation to limit competition in real estate by forcing new requirements on low-cost, online brokers.
Let’s hope there’s something good that comes out of this workshop (there will be if I have a say in it, as I hope to be selected as a panelist).