[Code of Federal Regulations]
[Title 24, Volume 5]
[Revised as of April 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 24CFR3500.14]

[Page 261-263]
 
                 TITLE 24--HOUSING AND URBAN DEVELOPMENT
 
 CHAPTER XX--OFFICE OF ASSISTANT SECRETARY FOR HOUSING--FEDERAL HOUSING 
        COMMISSIONER, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
 
PART 3500--REAL ESTATE SETTLEMENT PROCEDURES ACT--Table of Contents
 
Sec. 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 Sec. 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 
Sec. 3500.14(g)(1). A company may not pay any other company or the 
employees of any other company 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 Secs. 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

[[Page 262]]

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 
Sec. 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.

[61 FR 13233, Mar. 26, 1996, as amended at 61 FR 29252, June 7, 1996; 61 
FR 58476, Nov. 15, 1996]

    Effective Date Note: At 61 FR 29252, June 7, 1996, Sec. 3500.14 was 
amended by revising the last sentence of paragraph (b), the heading of 
paragraph (g), and paragraph (g)(1), effective Oct. 7, 1996. At 61 FR 
51782, Oct. 4, 1996, the

[[Page 263]]

effective date was delayed until further notice. For the convenience of 
the user, the new text is set forth as follows:

Sec. 3500.14  Prohibition against kickbacks and unearned fees.

                                * * * * *

    (b) *  *  * 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.

                                * * * * *

    (g) Exemptions for fees, salaries, compensation, or other payments. 
(1) The following are permissible:
    (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 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;
    (vii) A payment by an employer to its own bona fide employee for 
generating business for that employer;
    (viii) In a controlled business arrangement, a payment by an 
employer of a bonus to a managerial employee based on criteria relating 
to performance (such as profitability, capture rate, or other 
thresholds) of a business entity in the controlled business arrangement. 
However, the amount of such bonus may not be calculated as a multiple of 
the number or value of referrals of settlement service business to a 
business entity in a controlled business arrangement; and
    (ix)(A) A payment by an employer to its bona fide employee for the 
referral of settlement service business to a settlement service provider 
that has an affiliate relationship with the employer or in which the 
employer has a direct or beneficial ownership interest of more than 1 
percent, if the following conditions are met:
    (1) The employee does not perform settlement services in any 
transaction; and
    (2) Before the referral, the employee provides to the person being 
referred a written disclosure in the format of the Controlled Business 
Arrangement Disclosure Statement, set forth in appendix D to this part.
    (B) For purposes of this paragraph (g)(1)(ix), the marketing of a 
settlement service or product of an affiliated entity, including the 
collection and conveyance of information or the taking of an application 
or order for an affiliated entity, does not constitute the performance 
of a settlement service. Under this paragraph (g)(1)(ix), marketing of a 
settlement service or product may include incidental communications with 
the consumer after the application or order, such as providing the 
consumer with information about the status of an application or order; 
marketing shall not include serving as the ongoing point of contact for 
coordinating the delivery and provision of settlement services.

                                * * * * *