FTC Seeks Public Comments on Potential Major Changes for HSR Reportability of Real Estate Transactions

Many, if not most, transactions involving real estate are exempt under the Hart‑Scott‑Rodino Antitrust Improvements Act (the HSR Act). In fact, in light of the fragmented nature of most real estate markets, antitrust concerns are not common for real estate businesses. However, the Federal Trade Commission (FTC) and Department of Justice (DOJ, and together with the FTC, the Agencies) are soliciting public comments on potential amendments to the HSR rules, including whether to remove certain real estate exemptions altogether. Additionally, Senator Elizabeth Warren has introduced legislation that would significantly narrow or eliminate key real estate and REIT‑related exemptions. This alert covers these potential changes and the significant burden they would have on real estate transactions moving forward, including the potential for many more transactions requiring HSR filings.

Current HSR Rules for Real Estate

The HSR Act requires filings to the Agencies if the Size-of-Transaction and, if relevant, the Size-of-Person thresholds are met (see Goodwin’s recent alert regarding the 2026 annual adjustment of these thresholds). Each party to an HSR-reportable transaction is required to file notifications with the Agencies, and the transaction may not be completed until the statutory waiting period (generally 30 days) either expires without action or is terminated early by the Agencies. Filings require the collection of certain transaction-related documents¹ and financial information² and payment of a single filing fee based on transaction value.

However, the HSR rules provide broad exemptions for acquisitions of real property, which have historically been viewed as unlikely to raise competitive concerns. Certain categories of assets are deemed exempt from the HSR Act, including office and residential property, investment rental property, certain hotels and motels, and agricultural and recreational land.³

The HSR rules also include a broad exemption for acquisitions of assets in the ordinary course of business. Because real estate investment trusts (REITs) acquire and hold real property in the ordinary course of their business, acquisitions of a REIT and acquisitions by a REIT have historically qualified for this exemption, even where the same assets would not be exempt if acquired by a non‑REIT.

Review of Real Estate Exemptions

On March 25, 2026, following a recent court decision that vacated a set of expanded HSR disclosure requirements, the FTC and DOJ issued a request for public comment on further changes to the HSR form and rules.⁴ Among other topics, the Agencies invited comment on whether the real estate exemptions described above should be eliminated, and whether REITs should be excluded from the “ordinary course” exemption in light of the “evolving operating structures” of REITs (the ordinary course exemption itself would presumably remain in place).⁵

The Agencies highlighted that these exemptions were adopted at a time when real estate transactions were viewed as unlikely to present competition concerns and violate the antitrust laws. However, based on developments in the housing market, the Agencies queried whether the removal of these exemptions would better facilitate antitrust review of acquisitions of single‑family homes, particularly for rental purposes. While no specific rulemaking has been proposed, the Agencies’ request for comment suggests a serious reexamination of the status quo for real estate transactions, and could have a broader impact on real estate investors generally.⁶

The American Homeownership Act

In February 2026, Senator Elizabeth Warren introduced the American Homeownership Act (S. 3904).⁷ Among other provisions, the bill would materially alter the HSR analysis for real estate transactions by eliminating the exemption for acquisitions of residential property, and significantly limiting the ordinary‑course and REIT‑related exemptions. The proposal would also introduce a one‑year look‑back for aggregating residential property acquisitions across multiple sellers, potentially rendering serial acquisitions reportable even where individual transactions would otherwise be nonreportable.

Although the bill has not advanced, its key concepts align with the questions raised by the Agencies’ request for comment, suggesting a trend toward increased oversight of institutional real estate transactions.

Key Takeaways

For now, the existing real property and REIT exemptions remain in place, and most real estate acquisitions fall outside of the HSR regime. However, real estate investors and REITs should continue to monitor the legislative and rulemaking processes in the coming months, as any alteration or removal of these exemptions could introduce a costly and time-consuming burden on real estate investors, potentially requiring more frequent filings and delaying closing timelines.

Please contact a member of Goodwin’s Real Estate team to discuss these developments and their implications for specific transactions, or for assistance with drafting and submitting comments in response to the Agencies’ request.