Jun 16, 2008

RESPA Law and Paying Buyers

I had a question last week about paying Buyers back who use Neighborly Realty for their purchase. The question was basically, do we split our commissions with Buyers if they hire us?

We don't do that.

Commissions are always a touchy subject. What's most important to remember for those of us in the Real Estate business, is that commissions are our wages.

Although simply calling them "wages" may not be sufficient - as there are legal ramifications for how we use those earnings.

We are regulated on what we can do with those wages and how much we can do for clients. A big part of the regulation comes from something called RESPA - enacted in the 1970s and strengthened after the Savings & Loan failures in the late 1980s.

Here's what RESPA states:

In many states, Real Estate licenses are granted without close examination of an applicant's knowledge of RESPA guidelines. As a result, many Real Estate Agents go into business unaware that certain practices are prohibited via Federal statutes enacted by the US Department of Housing and Urban Development.

RESPA stands for the Real Estate Settlement Procedures Act. Introduced in 1974, RESPA law is designed to protect consumers in the process of purchasing a home. RESPA requires lenders to provide consumers with disclosures (Truth-in-Lending Disclosure Statement) at various stages throughout the loan process, and also prohibits kickbacks and referral fees that would increase the cost of settlement services for consumers.

There are two main points of the law that affect referral relationships between parties involved in the selling of a home:

Prohibition of kickbacks. RESPA states that no one can give any "thing of value" in exchange for referrals. According to RESPA, if a Real Estate Agent refers business to me, I cannot even send them a gift certificate as a way of saying thanks. This applies to any people involved in a Real Estate transaction. If a client of yours refers another person to you, you can't reward them with any "thing of value" in exchange for the referral.

Can you have a party and invite all your past clients and include referral sources? Yes. But you cannot exclusively invite referral sources, as this would constitute a provision of something of value in exchange for referrals according to RESPA.

Can you give a client a thank you gift after a transaction closes? Yes. Giving new homeowners a house-warming gift is great marketing tool to implement after the deal is closed. However, you cannot give them a thank you gift in exchange for referring additional business to you.

As the Broker for Neighborly Realty, I’ve taken several courses in Risk Management. I have too, as I hold an extra level of legal scrutiny by being a Broker.

RESPA is something we are very careful with. It isn’t entirely clear on some of the “gray areas” around gifts and sharing revenues.

I’ve been told that more legislation is coming – entirely due to the real estate market collapse that started in October of 2005.

Again, how we manage our wages is very important. We will never do anything illegal or unethical with those revenues. We hope our clients now have some insight as to why we do everything “by the book”.

- Jim

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