The Real Estate Settlement Procedures Act (RESPA) regulatory environment has changed significantly since the former Consumer Financial Protection Bureau (CFPB) director Richard Cordray left the CFPB in November 2017. New leadership promised to end the era of “regulation by enforcement.” In 2018, the D.C. Circuit Court of Appeals overturned Cordray’s controversial ruling against PHH that rewrote the RESPA statute under his view that any relationship involving a referral source is illegal.
What do these relatively recent developments mean for joint ventures in the real estate industry? Here’s what two leading RESPA attorneys, Phil Schulman of Mayer Brown and Richard Andreano of Ballard Spahr, had to say about today’s regulatory lay of the land.
Schulman and Andreano both noted that the regulatory environment for affiliated business arrangements (ABAs) is more precise than that of Marketing Services Agreements (MSAs) since there is a specific ABA exemption (a safe harbor) under RESPA. There must be the disclosure of the affiliation at or before the time of the referral, no required use of the affiliated service and nothing of value received other than a return on an ownership or franchise interest. “The PHH case involved RESPA’s more generic exemption for payments for services rendered (Section 8 (c)(2)), not ABAs,” Andreano pointed out. “If Cordray had tried to rewrite the ABA statutory exemption, he would have had a harder road to follow.”
Both lawyers emphasized that a company should not enter into a joint venture unless both partners are ready to substantially comply with the RESPA Sham Joint Venture Guidelines, which lay out 10 factors regulators use to determine whether a joint venture is bona fide or a sham designed to circumvent RESPA’s referral fee prohibition. These include (but aren’t limited to) adequate and proportional capitalization by both partners, the performance of the core or essential services by the joint venture’s employees, separate management, and separate office space. Note: A 2013 Sixth Circuit Court of Appeals ruling in Carter v. Wells Bowen Realty Inc. that the Guidelines need not be given “deference” is only binding on district courts in Ohio, Michigan, Tennessee, and Kentucky.
There are additional securities issues raised if real estate brokers want to include agents as owners, according to Schulman. The ownership interest is a security, which means it must be registered with financial authorities unless the agent is an accredited investor. To be an accredited investor, a person must have an annual income exceeding $200,000 or $300,000 for joint income for the last two years, or a net worth exceeding $1 million. “Some real estate brokers don’t understand this,” he said.
Andreano also underscored the importance of providing a compliant affiliated business disclosure, pointing to a $500,000 civil penalty that the CFPB under Cordray imposed on RealtySouth in 2014 for deviating from the model Affiliated Business Disclosure Form provided as an appendix in RESPA regulations. RealtySouth allegedly did not use capital letters when advising of the consumer’s right to choose; did not set apart a statement advising of the consumer’s right to choose, and included promotional language. While an Alabama federal court ruled in 2016 that the exact language of the model disclosure is not required as long as the required statutory elements are present, companies need to be mindful that the CFPB finding is still on the books.
Andreano pointed to Dodd-Frank’s requirement that a loan must have less than 3 percent in points and fees to be considered a Qualified Mortgage, which is assumed to have met Dodd-Frank’s ability-to-repay requirements. Current CFPB regulations require that affiliated (but not unaffiliated) title fees and mortgage broker fees be counted towards the 3 percent threshold, which could cause some affiliated loans to exceed the cap—particularly when loan amounts are low.
Both Schulman and Andreano advise a thorough review of state laws and regulations, many of which cap the percentage of business a title agent or insurer can receive from an affiliated business or contain other restrictions on affiliated operations. Many state attorneys general and financial services regulators will be motivated to ramp
up their enforcement activity to fill perceived regulatory or enforcement voids at the federal level—often at
the urging of affiliated business competitors.
Finally, Schulman highlighted the practical considerations of creating a joint venture. “ABAs are more lucrative than MSAs, with higher gains,” he said. “But real estate brokers need to understand that they are creating a whole new business, which means a higher investment.”
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