Marketing/Administrative Services Agreements Used by Real Estate Agents
On August 13, 2009, the National Association of Realtors (NAR) requested a meeting with HUD officials to discuss appropriate guidance from HUD on two important issues that continue to cause confusion for consumers, real estate brokers and real estate agents. The first issue concerns administrative fees and their proper structure and use under Section 8 of the Real Estate Settlement Procedures Act (RESPA). The second issue concerns RESPA-compliant compensation of real estate brokers and agents by home warranty companies in marketing and sale of home warranty products.
HUD Published an Unofficial Staff Interpretation on “Marketing/Administrative Services Agreements Used by Real Estate Agents in February of 2008..
HUD Unofficial Staff Interpretation Letter – Feb. 21, 2008 (pdf)
Based on HUD’s initial response, dated February 21, 2008, It appears that NAR’s characterization of the of the purpose of the fee is HUD’s problem in recognizing the fee as a RESPA compliant fee. HUD’s 2008 letter states as follows:
“characterizing such arrangements as a “marketing’ or “administrative” agreements does not render the underlying conduct legal.” See 2nd to last paragraph of HUD’s Interpretation Letter – Feb. 21, 2008.
“HUDs regulation permit a settlement service provider who is in a position to refer settlement service business, to receive additional compensation for providing additional settlement services, that are actual necessary, and distinct from the primary services provided by that person in a transaction. (24 CFR 3500.14(g)(3)).”
Unofficial interpretations are issued by HUD in response to requests for interpretation of matters “not adequately covered … by an official interpretation…. Such interpretations provide no protection under … RESPA.” 24 CFR Sec. 3500.4(b).
§ 3500.14 Prohibition against kickbacks and unearned fees.
(a) Section 8 violation. Any violation of this section is a violation of section 8 of RESPA (12 U.S.C. 2607) and is subject to enforcement as such under § 3500.19.
(b) No referral fees. No person shall give and no person shall accept any fee, kickback or other thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or part of a settlement service involving a federally related mortgage loan shall be referred to any person. Any referral of a settlement service is not a compensable service, except as set forth in § 3500.14(g)(1). A business entity (whether or not in an affiliate relationship) may not pay any other business entity or the employees of any other business entity for the referral of settlement service business.
(c) No split of charges except for actual services performed. No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed. A charge by a person for which no or nominal services are performed or for which duplicative fees are charged is an unearned fee and violates this section. The source of the payment does not determine whether or not a service is compensable. Nor may the prohibitions of this part be avoided by creating an arrangement wherein the purchaser of services splits the fee.
(d) Thing of value. This term is broadly defined in section 3(2) of RESPA (12 U.S.C. 2602(2)). It includes, without limitation, monies, things, discounts, salaries, commissions, fees, duplicate payments of a charge, stock, dividends, distributions of partnership profits, franchise royalties, credits representing monies that may be paid at a future date, the opportunity to participate in a money-making program, retained or increased earnings, increased equity in a parent or subsidiary entity, special bank deposits or accounts, special or unusual banking terms, services of all types at special or free rates, sales or rentals at special prices or rates, lease or rental payments based in whole or in part on the amount of business referred, trips and payment of another person’s expenses, or reduction in credit against an existing obligation. The term “payment” is used throughout §§ 3500.14 and 3500.15 as synonymous with the giving or receiving any “thing of value” and does not require transfer of money.
(e) Agreement or understanding. An agreement or understanding for the referral of business incident to or part of a settlement service need not be written or verbalized but may be established by a practice, pattern or course of conduct. When a thing of value is received repeatedly and is connected in any way with the volume or value of the business referred, the receipt of the thing of value is evidence that it is made pursuant to an agreement or understanding for the referral of business.
(f) Referral–(1) A referral includes any oral or written action directed to a person which has the effect of affirmatively influencing the selection by any person of a provider of a settlement service or business incident to or part of a settlement service when such person will pay for such settlement service or business incident thereto or pay a charge attributable in whole or in part to such settlement service or business.
(2) A referral also occurs whenever a person paying for a settlement service or business incident thereto is required to use (see § 3500.2, “required use”) a particular provider of a settlement service or business incident thereto.
(g) Fees, salaries, compensation, or other payments. (1) Section 8 of RESPA permits:
(i) A payment to an attorney at law for services actually rendered;
(ii) A payment by a title company to its duly appointed agent for services actually performed in the issuance of a policy of title insurance;
(iii) A payment by a lender to its duly appointed agent or contractor for services actually performed in the origination, processing, or funding of a loan;
(iv) A payment to any person of a bona fide salary or compensation or other payment for goods or facilities actually furnished or for services actually performed;
(v) A payment pursuant to cooperative brokerage and referral arrangements or agreements between real estate agents and real estate brokers. (The statutory exemption restated in this paragraph refers only to fee divisions within real estate brokerage arrangements when all parties are acting in a real estate brokerage capacity, and has no applicability to any fee arrangements between real estate brokers and mortgage brokers or between mortgage brokers.);
(vi) Normal promotional and educational activities that are not conditioned on the referral of business and that do not involve the defraying of expenses that otherwise would be incurred by persons in a position to refer settlement services or business incident thereto; or
(vii) An employer’s payment to its own employees for any referral activities.
(2) The Department may investigate high prices to see if they are the result of a referral fee or a split of a fee. If the payment of a thing of value bears no reasonable relationship to the market value of the goods or services provided, then the excess is not for services or goods actually performed or provided. These facts may be used as evidence of a violation of section 8 and may serve as a basis for a RESPA investigation. High prices standing alone are not proof of a RESPA violation. The value of a referral (i.e., the value of any additional business obtained thereby) is not to be taken into account in determining whether the payment exceeds the reasonable value of such goods, facilities or services. The fact that the transfer of the thing of value does not result in an increase in any charge made by the person giving the thing of value is irrelevant in determining whether the act is prohibited.
(3) Multiple services. When a person in a position to refer settlement service business, such as an attorney, mortgage lender, real estate broker or agent, or developer or builder, receives a payment for providing additional settlement services as part of a real estate transaction, such payment must be for services that are actual, necessary and distinct from the primary services provided by such person. For example, for an attorney of the buyer or seller to receive compensation as a title agent, the attorney must perform core title agent services (for which liability arises) separate from attorney services, including the evaluation of the title search to determine the insurability of the title, the clearance of underwriting objections, the actual issuance of the policy or policies on behalf of the title insurance company, and, where customary, issuance of the title commitment, and the conducting of the title search and closing.
(h) Recordkeeping. Any documents provided pursuant to this section shall be retained for five (5) years from the date of execution.
(i) Appendix B of this part. Illustrations in Appendix B of this part demonstrate some of the requirements of this section.
[Codified to 24 C.F.R. § 3500.14]
[Section 3500.14 amended at 61 Fed. Reg. 13233, March 26, 1996, effective April 25, 1996; 61 Fed. Reg. 29252, June 7, 1996, effective October 7, 1996; 61 Fed. Reg. 58476, November 15, 1996, effective January 14, 1997]
