RESPA REFORM: REQUIRED USE DEFINED

HUD new RESPA rule changes the definition of “Required Use” to read as follows:

“Required use means a situation in which a borrower’s access to some distinct service, property, discount, rebate or other economic incentive, or the borrower’s ability to avoid an economic disincentive or penalty, is contingent upon the borrower using or failing to use a referred provider of settlement services. However, the offering by a settlement service provider of an optional combination of a bona fide settlement services to a borrower at a total price lower than the sum of the prices of the individual settlement services does not constitute a required use.”

The new RESPA rule as defined would apply to the condition of the affiliated business arrangement exception to Section 8 that a consumer may not be required to use an affiliated business arrangement (AfBA) settlement service provider and the prohibition under Section 9 that a seller of the property may not require that title insurance be purchased by the buyer from any particular title company (whether affiliated or unaffiliated).

The proposed RESPA rule definition also places limits on incentives based on the use of one or more affiliated settlement services providers. The definition says that incentives can only be offered by settlement service providers, however the rule says that developers and/or homebuilders are not considered settlement service providers. Homebuilders and/or developers under this new rule are prohibited from offering incentives to borrowers to use their affiliated business arrangement companies.

The new RESPA rule says that any incentive must be limited to a reduction in the price for the settlement services. The rule also states that incentives can only be offered to borrowers which means that sellers or other third parties would be forbidden from receiving any sort of incentive.

On January 16, 2009, homebuilders and developers will be barred from offering incentives to borrowers from their affiliated businesses or preferred businesses. Homebuilders and developers have a short period of time to make sure that all of their contracts are updated so that incentive provisions and marketing materials reflect the new changes to the law otherwise they will be in violation of RESPA’s Section 9.