
The
Federal Bureau of Investigation is investigating as criminal fraud what the
Department of Justice promotes as healthy competition.
Confused? Well so am I. The FBI is mad; the DOJ is self-righteous. The FBI and the DOJ need to compare notes. What the DOJ calls fair price competition for the real estate agent community is being perceived as possible mortgage fraud by the FBI. “Houston, we have a problem.”
The problem is real estate commissions that are rebated to buyers after closing. The FBI is alleging that such a rebate that is not disclosed to the lender could be construed as mortgage fraud. The DOJ takes a contrary position and supports the real estate commission rebate as the removal of the barriers that inhibit competition in the marketplace.
The DOJ describes and promotes commission rebates as follows: “Some real estate brokers offer consumers cash refunds or non-cash incentives to encourage them to use that broker’s services. Rebates are typically cash payments from the real estate broker to his or her client after closing. Incentives may include gift certificates, closing-cost payments, or free ancillary services such as home inspections or moving services.”
Two worlds collide.
Let me first set the stage, with the help of the
Wall Street Journal, on the FBI investigation of home builders whose generous incentive programs, including commission rebates, crossed the line into mortgage fraud.
“When home sales began to slow at the start of the downturn, home builders offered buyers incentives -- instead of reducing prices -- to stimulate demand. The incentives included cars, tuition and credit-card payments, and even cash. Now, federal investigators are questioning whether some of those incentives misled lenders and caused them to write mortgages that were artificially inflated, contributing to today's home-price crash."
Following on the heels of the DOJ report last year, the
hackles started rising as I read the implied threat that real estate agents could be guilty of mortgage fraud because they were rebating commissions, a practice condoned by the DOJ. (Caveat insertion - scale and intent of the rebate must apply.) The FBI is not singling out real estate agents by any means and their dragnet includes just about every party to the transaction. I call this cross-collateralized pressure to get the transaction closed.
“Using incentives to sell homes has long been a marketing tool for builders. When properly disclosed and structured, the practice is legal. But the Federal Bureau of Investigation is looking into allegations that home builders, brokers and appraisers defrauded lenders by not disclosing unusually large incentives to buyers, which could have added as much as $100,000 to the price of a home.”
The creative and extreme incentives became prevalent in 2006 in the most stressed markets like California, Nevada and Florida when the housing market first began to falter. The WSJ reports that interviews with real estate agents, home buyers and former employees at home builders “describe an industry where competitive pressures fueled unusually creative giveaways in a last-ditch attempt to prevent price cuts. Home builders hate to cut prices, not only because it reduces profit, but also because their customers who paid full price complain.” As it became apparent that the housing downturn was not going to be short lived, the efforts to support 2004/2005 prices became futile.
In some cases, builders paid “over the market” commissions to real estate agents who then rebated that money back to the buyer without the knowledge of the lender.
“At the height of the real-estate boom, commissions in Las Vegas regularly reached double digits, real-estate agents say. Kurt DeWinter, a Henderson, Nev., agent, received a $70,000 commission on a $550,000 home from Beazer Homes USA Inc. two years ago. He says he gave half of that to the buyer.”
Some builders are slow learners and are still offering over-the-top incentives.
Wagner Homes Inc., a local home builder outside of Las Vegas,
advertises "$130,000 commission any way you like it!" for his homes. Wagner's new homes listed in July for $530,000 even though similar model homes in that development sold for $400,000 two years ago. $130,000 cash-out may be worth something to somebody. That phone number is 1-800-GO STRAIGHT TO JAIL. The WSJ said that representatives of Wagner Homes didn’t return calls seeking comment. No kidding.
Let’s get back to the Department of Justice’s heartburn and their support of the real estate commission rebate. In April of 2007 the Federal Trade Commission in conjunction with the Department of Justice published a report entitled
"Competition in the Real Estate Brokerage Industry". The biggest complaint of the DOJ in the report is the
ban of (commission) rebates by certain states – 13 to be exact: Alabama, Louisiana, Oregon, New Jersey, Kansas, Alaska, North Dakota, Oklahoma, Mississippi, and Missouri.
The DOJ sees the ban on rebates as a barrier to competition: “Rebate bans inhibit price discounting and thereby harm consumers.” The report cites that in states allowing rebates, some brokers rebate one-third to one-half of their commission to their buyers.
Here’s a modest scenario of the real estate commission rebate promoted by the DOJ:
A house sells for $750,000 and the commission at 6% is $45,000. $20,000 of that commission is rebated after closing to the Buyer. Isn’t $730,000 the real fair market value of the house? The answer is yes if the Buyer was not willing to buy the house without the $20,000 rebate: the value is $730,000. But the lender has made a loan based on $750,000 and has $20,000 less collateral than he thought he had. As a neighborhood comparable, the next sucker who puts his house on the market immediately assumes that $750,000 is a legitimate expectation of value, all things being equal. And the Buyer will pay real estate taxes off an inflated value for as long as he lives there.
Call me old fashioned. I always felt that commissions were compensation for services rendered by a professional and that the commission should be negotiated based on the value of those services. The commission rebates have mutated, in many cases, into an ATM for buyers.
Before rebates were acceptable in most states, and as is still the case in the 10 states listed above, commissions were only allowed to be paid to licensed real estate agents. If a real estate commission was reduced it had to happen within the confines of the transaction and the purchase price was reduced or expenses paid that were transparent on the closing statement. A rebate is nothing more than a kickback, which on the part of the seller is considered criminal.
This is not an argument to support any certain commission arrangement, amount, or type business model. Remove the dollar issue off the table. It is an argument for clarity and disclosure.
This is really muddy water as is evidenced by the contrary positions by two fed giants. The net results of a commission negotiation should be transparent in the transaction. After all, transparency is touted as the aspiration of the day.