What is an affiliate relationship under RESPA?

Background

Applying equally to all settlement service providers, RESPA does not distinguish among different types of settlement providers based on their role in the real estate sales transaction. A settlement service generally includes any service provided in connection with a real estate settlement including, but not limited to: title searches, title examinations, the provision of title certificates, title insurance, services rendered by an attorney, the preparation of documents, property surveys, the rendering of credit reports or appraisals, pest and fungus inspections, home warranty companies, services rendered by a real estate professional, the origination of a federally related mortgage loan, and the handling of the processing and closing or settlement.

While the CFPB is generally excluded from exercising authority over real estate brokerage activities, the CFPB does have authority under RESPA over agents and brokers engaging in offering or providing financial products or services. Real estate agents and brokers must comply with RESPA and are prohibited from receiving anything of value in return for the referral of settlement service business. Violators of RESPA are subject to penalties, including damages, fines, and imprisonment.

Prohibition against Kickbacks and Unearned Fees

One of the primary ways real estate agents and brokers are concerned with RESPA compliance relates to relationships with other settlement service providers and potential kickbacks or payment of referrals that may result from those relationships. Section 8 of RESPA generally prohibits any person from giving or receiving any "thing of value" in exchange for the referral of settlement service business. However, there is an exception under RESPA that allows brokers and agents to exchange reasonable payments in return for goods provided or services performed by other settlement service providers, so long as those arrangements are carefully structured to comply with the law and regulations.

The CFPB has been increasing scrutiny of settlement service provider relationships and activities under RESPA in recent months, resulting in growing uncertainty for the real estate industry. Below are some examples for real estate professionals to follow when engaging in activities with other settlement service providers related to marketing, referral fees, and affiliated business arrangements.

Marketing

Co-Marketing : A real estate broker and a mortgage lender agree to jointly place a full-page advertisement in a local newspaper. Each company gets exactly one-half of the page to advertise its services. Each company pays one-half of the cost of the advertisement.

This is not a violation of Section 8 of RESPA as long as the advertising costs paid by each party are reasonably related to the value of the goods or services received in return (i.e., the amount of advertising). If one party is paying more than a pro rata share for the advertisement, the additional costs could be viewed as a disguised payment for referral, resulting in a RESPA violation.

Sponsorships of Events : A real estate agent is sponsoring an open house for other agents. A local title agency reimburses the real estate agent for the cost of the luncheon and the title agency does not market its title services at the open house.

Because the title agency does not market its title services at the open house, both the real estate agent and title agency could be found in violation of RESPA. By reimbursing the real estate agent for the cost of the luncheon, the title agency has given the real estate agent a thing of value in consideration for the referral of business. If, however, the title company attends the open house to make a presentation or to otherwise market its services, such payments may be lawful under RESPA.

A settlement service provider can sponsor an educational event as a way to promote its services, so long as the costs associated with the event do not defray expenses that the real estate agent would otherwise encounter and are not conditioned on the referral of business. Note, however, that a rule of reason should be applied. An educational event hosted by a mortgage lender that was held at a local hotel and provided a lunch would be different from an educational event held in Hawaii in which one hour was dedicated to education and the remainder of the event was directed toward recreation.

Marketing Service Agreements : A real estate broker and a title agent enter into a marketing service agreement (MSA), where the real estate broker charges the title agent a disproportionate share for the marketing materials developed and distributed to consumers - an amount that is in excess of the fair market value of the of the marketing services actually performed.

This would be in violation of RESPA, where the excess payments for the services could be deemed a payment for referrals. RESPA permits the marketing of other settlement services by another settlement service provider so long as the payments made for these services represents the fair value for the services provided. Fair market value should be based on what a non-settlement service provider would pay for the same services by another.

A lawful MSA should contain the following elements: (1) the real estate professional can perform services for other companies in the same field of business (i.e., the agreement is not exclusive); (2) the compensation is not based on the volume of business, but rather on the value of the services provided by the real estate professional; (3) a written contract between the parties that documents the services to be provided pursuant to the agreement; and, (4) a written disclosure is provided to the consumer describing the real estate professional's role in selling the third-party service.

Office Rentals : A settlement provider conducts real estate closings in the conference room of the real estate broker with the expectation that the real estate broker will refer closing business to the settlement agent. The settlement agent pays fair market value to rent the conference room for each closing.

This appears to comply with RESPA. A settlement service provider may rent a conference room or other office space from another settlement service provider, as long as it pays fair market value to rent the space. Fair market value should be based on what a non-settlement service provider would pay for the same amount of space and services in the same or a comparable building.

Promotional Materials : A homeowner's insurance company gives a real estate broker marketing materials, such as desk calendars, pens, and notepads, all of which promote the homeowner's insurance company's name.

Distribution of such materials is compliant with RESPA because the regulations provide an exception to Section 8 for normal promotional and educational activities that are not conditioned on the referral of business. Such materials must also not defray expenses that otherwise would be incurred by persons in a position to refer settlement service business.

Referral Fees

Brokers' Payments to Agents : A real estate broker pays its real estate agents $20 for each referral the agents make to the real estate broker's affiliated mortgage company.

This is a violation of RESPA. Although RESPA provides an exception for payments made from an employer to its employees, payments between a real estate broker and its salespeople do not qualify for this exception. Real estate professionals are considered independent contractors, rather than employees of the real estate broker. As a result, the $20 payments constitute payments in return for the referral of business in violation of RESPA.

Payments between Settlement Service Providers : A licensed broker pairs buyers with real estate professionals in different geographical areas based upon information received from consumers and from participating real estate professionals. Referral fees are then paid from the other broker when a deal settles. This model is then expanded to pair real estate agents with mortgage brokers and a fee is collected.

This arrangement would violate RESPA. Section 8(c) of RESPA contains exceptions to RESPA's prohibitions on kickbacks that allows for cooperative fees to be paid between real estate licensees, including referral fees. However, no such exception exists for payments made to mortgage brokers and therefore would be in violation of the law.

Agent Incentives : A mortgage lender devises a contest among local real estate agents where the real estate agent who refers the most customers to the lender will receive a vacation cruise to Alaska.

This is a violation of RESPA because the vacation cruise is a thing of value in exchange for the referral of business, violating the law's anti-kickback provisions. Both the mortgage lender and the real estate professionals can be held liable for RESPA violations.

Meals : The owner of a title agency meets the owner of a real estate brokerage firm for dinner to discuss future marketing opportunities. After the discussion has ended, the owner of the title agency pays for the real estate broker's dinner.

This complies with RESPA because the purpose of the dinner was business related and was not a payment for the referral of business.

Affiliated Business Arrangements

Affiliated Business Disclosure : A real estate broker refers business to its affiliate title company and provides its customers with an affiliated business disclosure. The disclosure lists the range of charges that the title company will charge for its services; the financial interest in the title company; and notifies the customer that he or she is not required to use the title company for services.

This is compliant with RESPA, as the referrer of business to an affiliated entity is required to provide a written disclosure to each consumer that identifies the affiliated relationship, provides the charges or range of charges that the joint venture generally charges, and notifies the consumer that he or she is not required to use the affiliated business.

Payments Based on Referred Business : A real estate broker and a title insurance company create an affiliated title agency that pays dividends to both the real estate broker and title insurance company in proportion to the amount of business that each refers to affiliated title agency during the year.

This is a violation of RESPA because an affiliated business may only pay its partners or investors a proportionate share of the profits based on their ownership interest in the affiliate. Thus, if the partner owns 50 percent of the business, they may receive 50 percent of the profits in annual dividends, based on the amount of stock held. RESPA prohibits the payment of dividends based on the amount of business referred or expected to be referred to an affiliated business.

Consumer Discounts : A prospective buyer's credit union has told her that in order to qualify for a special package of services, she must use certain settlement service providers, including specific real estate professionals. Additionally, the real estate professionals are then required to rebate a portion of their commission to the buyer through this program .

Such arrangements could be legal under Section 8 of RESPA. The credit union can offer the consumer a package of settlement services at a reduced cost to the consumer if the consumer elects to use certain settlement service providers for settlement services, even if those providers are affiliates of the credit union. The credit union also could require a consumer to use a particular provider for settlement services without the offering of a discount, as long as the credit union and settlement service provider are not affiliates. However, the credit union cannot require the consumer to use an affiliate settlement service provider.

The credit union's offering of a package of services at a discount tied to the use of an affiliate provider is not considered required use, as long as the consumer is notified of his/her option to shop for settlement services and the discount is a true discount to the consumer that is not made up elsewhere in the cost of the transaction. A real estate professional can also agree to rebate a portion of his/her commission to a consumer. However, some states have laws prohibiting the payments of rebates to unlicensed individuals, making such a practice illegal in those jurisdictions.

Additional Guidance

Consult with a RESPA attorney to ensure compliance with any and all applicable laws, as some state and local laws prohibit or otherwise restrict activities that may be permissible under RESPA. For resources on specific issues under RESPA, see the additional guidance below.

Guidance on online co-marketing activities under RESPA .

Frequently asked questions on specific agent and broker activities under RESPA.

What is true about affiliated business arrangements in CA?

What disclosure must be provided to the borrower if an AfBA is in play in Ohio?