Feds say Kansas rule reduces competition, harms homebuyers

? A proposed Kansas rule barring real estate brokers from offering gift cards would reduce competition and cause “significant harm” to homebuyers, the U.S. Department of Justice’s Antitrust Division told state regulators.

The federal government doesn’t often weigh in on Kansas real estate regulations and its letter, written by Acting Assistant Attorney General Andrew Finch, comes as the Kansas Real Estate Commission considers public comments. The letter, dated Friday, was addressed to Erik Wisner, the commission’s executive director.

A public hearing held Monday on the planned regulation lasted less than an hour. Commissioners heard “various tones of opposition” from speakers, Wisner said. They plan to take up the matter again at their Aug. 21 meeting.

Wisner said it was the first time since he was hired in February 2015 that the Justice Department has weighed in on a Kansas real estate regulation.

Kansas law prohibits real estate brokers from offering “rebates” on part of a broker’s sales commission. That limits brokers from competing on price, which in turn causes homebuyers to pay higher commissions to brokers, the Justice Department said. The statute does not now define what constitutes a rebate, something the proposed regulation seeks to address.

The state contends the proposal will not have any fiscal impact. The Justice Department disagrees and its letter urges the commission to not restrain “an important dimension of price competition” that benefits homebuyers in Kansas.

Finch told the commission in his letter that brokers are now able to compete by offering homebuyers gift cards redeemable at retailers such as home improvement or furniture stores, noting the cards are of “significant value” for homebuyers and “often amount to several hundred dollars’ worth of savings.”

The proposed regulation would curtail this practice, and the Justice Department contended it would restrict one of the few remaining mechanisms by which brokers can compete on price. It argued that under antitrust law, restrictions on price competition are generally viewed with “great skepticism.”

But Char MacCallum, a broker at EXP Realty LLC in Olathe, said plenty of competition exists in broker commissions in Kansas.

MacCallum said she sometimes gives customers a gift card worth $25 or less as a thank you after a sale, but said she is aware of other brokers who use gift certificates worth as much as $500 as an inducement to do business with them. She does not believe the proposed regulation is necessary, but said the commission is trying to protect consumers.

“I think there are other things that they could focus on, but this is one that has come up because maybe someone has felt it is a disadvantage,” she said.