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RE Conducting Random “Broker Office Surveys”: How to Prepare

The Department of Real Estate’s Summer 2019 Bulletin warns brokers of the possibility of being investigated at random through what the DRE calls, “Broker Office Surveys,” which appear to be a type of limited audit.  See the Bulletin article titled, “What is a Broker Office Survey and How to Prepare for One.

Selection for a Broker Office Survey does not mean that a brokerage has been reported to the DRE or is suspected of a violation. In fact, the DRE says that brokers are chosen at random from a list of brokers who have no formal disciplinary action against their license.  Because a brokerage could be subject to such a limited audit at any time, brokers must remain vigilant and ensure that they are complying with the Real Estate Law. 

What is a Broker Office Survey?
A Broker Office Survey consists of a special investigator from the Department’s Enforcement section meeting with a broker, usually at the broker’s main office, to review and ensure that the broker’s operation is in compliance with the Real Estate Law in the following areas: 1) Licensing 2) Trust account/record keeping 3) Required disclosures and 4) Broker supervision. 
During the Broker Office Survey, the special investigator will ask the broker a series of questions including but not limited to: 

Basic business information
Number of broker associates/salespersons retained
Branch office locations
Type of licensed activity conducted
Trust account information and
Most importantly, their supervision of their brokerage. 

In addition, the special investigator will ask to review a minimum of three transaction files. If violations are found, the special investigator will advise the broker of such and that follow-up will be required.

How to Prepare
The DRE specifically recommends that a broker should prepare for a Broker Office Survey by reviewing the following DRE publications:

Broker Compliance Evaluation Manual
RE 540 Broker Self-Compliance Checklist   

The manual contains many of the questions that a broker will be asked during a Broker Office Survey. Additionally, the DRE recommends that the checklist should be used in conjunction with the manual. 

Surging Insurance Premiums in Fire-Prone Communities

A recent article in the Sacramento Bee, “Sticker shock for California wildfire areas: Insurance rates double, policies dropped” details the crisis caused by the surge in home insurance premiums in fire-prone areas. The article states: “Stung by $24 billion in losses, insurers are imposing rate hikes or dumping customers altogether, leaving homeowners to seek replacement policies that can be two or three times as expensive.”

State officials are grappling with the problem, though lax insurance industry reporting requirements make it difficult to determine just how widespread the problem is. The California Department of Insurance (CDI) has issued a report entitled: “The Availability and Affordability of Coverage for Wildfire Loss in Residential Property Insurance in the Wildland-Urban Interface and Other High-Risk areas of California: CDI Summary and Proposed Solutions.” 
The CDI also offers information to homeowners on obtaining insurance including a list of insurance companies with contact information, the top 10 tips for finding home insurance, and how to file a complaint with DOI if the consumer receives notice of nonrenewal and believes the nonrenewal was unfair. See this link.  

UK Firm Purplebricks Exits U.S. Market After 2 Years

Purplebricks, a real estate brokerage based in the United Kingdom that touted big plans to disrupt markets across the pond, has announced it is shuttering its offices in the United States after only two years. The news comes on the heels of the brokerage ending its operations in Australia in May.

Purplebricks says it will exit the U.S. due to lower-than-expected revenues. The company said it is renewing its main focus on its existing presence in the United Kingdom and Canada.

Purplebricks is an online residential real estate brokerage known for its commission-free structure, charging homeowners a fixed fee for its services—regardless of whether their properties sell. The firm first entered the U.S. in September 2017. In the past 12 months, the company has reported a $42.9 million operating loss, which is more than double the year prior, Bloomberg reports.
“A significant opportunity to disrupt the U.S. market” remains, Purplebricks said in a statement. But it would require “substantially more management time and resources than the company is able to commit at this time.”

Purplebricks operated in California, New York, Connecticut, Nevada, Arizona, Florida, and New Jersey.

Article from REALTOR® Magazine 

DRE Describes Cross-Qualification Practices and Pitfalls

The Department of Real Estate in its 2019 Summer Bulletin points out that while the practice of cross-qualification is not necessarily unlawful, some specific actions taken by real estate licensees are and can lead to disciplinary action. 

According to the DRE many real estate licensees establish relationships with lenders because they have learned to trust the practices of those lenders through past experience. The licensees then share those experiences with their seller clients, who may elect to require cross-qualification. Using a preferred, trusted lender helps the sellers know that the buyers are truly able to qualify for the loan to purchase the property. Requiring that the buyers be cross-qualified through a specified lender as a condition of submitting an offer is a contractual and negotiable matter between the buyer and seller.

However, the DRE notes the following potential violations:

When the seller’s agent, and not the seller, requires the cross-qualification; sometimes, the seller is not aware that the cross-qualification is being required and is not being made aware of all purchase offers.
When the seller’s agent is receiving some sort of compensation, kick-back, referral fee, etc., from the specified lender
When the seller’s agent requires that loan documents such as a loan application be submitted directly to the seller’s agent, and not to the lender. At that point, the seller’s agent is acting as an agent for the lender, creating an agency relationship. That agency relationship must be disclosed to all parties in the transaction. Depending on the seller’s agent’s activities, there may be an agency relationship created between the seller’s agent and the buyer, which also must be disclosed and thereby creates dual agency and a fiduciary relationship. 
When the loan is for a home purchase, the seller’s agent who takes an application for a residential mortgage loan for compensation would require a mortgage loan originator license. 

The DRE Bulletin made no reference to the Prospect Mortgage consent order from 2017 in which the Consumer Financial Protection Bureau uncovered a kickback scheme involving literally 100s of brokers in California and Oregon. In the consent order, the CFPB noted that, “There are numerous lenders in each geographic area… which any buyer may choose to seek and obtain preapproval. There is rarely any special expertise possessed by only one lender in a given are that precludes other lenders in that same area from offering equally reliable preapprovals.” 

FinCEN Reporting is Required on Residential Real Property Sales of $300,000 or More for Counties of LA, SF, SD, San Mateo and Santa Clara 

As a reminder, the FinCEN Geographic Targeting Order (GTO) from November in 2018 lowered the reporting requirements for the sale of $300,000 properties. Be aware that escrow will not close without the required information. Closing without meeting the reporting requirements is a federal crime for US title insurance companies and their agents. 

FinCEN reporting will apply when the transaction includes all of the following:

Property is within the counties of LA, SF, SD, San Mateo or Santa Clara
Sales price is $300,000 or more
Buyer is a “Legal Entity” such as a corporation, LLC or partnership
Property is a 1 to 4 unit residential property (including condos)
Some part of the purchase is made using ANY wired funds, cashier’s check, certified check, traveler’s check, personal check, business check, money order in any form, or a virtual currency (such as Bitcoin)
Purchase is done without a bank loan or similar forms of external financing

The last bullet point means that lenders who are already subject to Anti-Money Laundering reporting, which includes businesses such as Quicken Loans or most finance companies or mortgage lenders with an NMLS number, would not trigger the GTO reporting requirement. However, seller financing, private loans and some hard money lenders would not qualify as a “bank loan” and therefore the transaction could be subject to the GTO requirement. 

FinCEN reporting will NOT apply when:
The buyer is an individual or
The buyer is a family trust or
The sales price is under $300,000 or
The property is outside the designated counties or
The property is a commercial property or
The buyer is getting an institutional loan or
There is a 1031 exchange company “parking” the property (as defined and clarified by FinCEN)

How to ensure a smooth closing
The key to ensuring a smooth closing is to educate your buyer as to the reporting requirements and stay in communication with the title company and escrow. 

In terms of educating your buyer, GTO reporting should never come as a surprise. The title company should be able to clarify when GTO will be required. If required, the escrow will typically provide the agent with a partially complete form. (The “ALTA Information Collection Form” is the most widely used form by title companies). 

It will be incumbent on the buyer to gather the rest of the information to complete the form. This will typically require the buyer to obtain the corporate documents. All of this information should be communicated to the escrow as soon as it is known. A partially complete ALTA form or information that comes at the last minute will delay the closing. 

Be aware that it is a federal crime to provide false information and REALTORS and escrow officers do not have actual knowledge of ownership. Do not sign on behalf of your customers. 

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