In yet another pivotal moment for the real estate industry, oral arguments were made yesterday before a three-judge panel at the United States Court of Appeals for the District of Columbia Circuit in the ongoing battle between the National Association of REALTORS (NAR) and the Department of Justice (DOJ). The panel, consisting of Circuit Judges Henderson, Walker, and Pan, will now deliberate and make a ruling in the future, a decision that could significantly impact the industry.
The case centers on NAR’s attempt to prevent the DOJ from reopening an investigation into the organization’s commission-sharing policies. The dispute revolves around a 2020 closure agreement, which NAR interprets as barring any future investigations. However, this interpretation faced scrutiny from the judges, particularly Judge Florence Pan, who questioned the permanence of the agreement.
Representing the DOJ, Frederick Liu argued that there was never an intention to indefinitely halt the investigation. He emphasized that during the negotiation process, the DOJ’s antitrust division did not make explicit commitments to end the probe permanently.
This legal showdown is crucial for NAR, an association with more than 1.5 million members. Just last month, NAR, along with other defendants, lost a nearly $1.8 Billion anti-trust lawsuit here in Missouri (Sitzer v NAR) and NAR is currently facing multiple other antitrust lawsuits, including a substantial class-action suit in Illinois, potentially leading to damages of $40 billion.
NAR’s attorney, Christopher Michel, stressed the significance of the closure agreement, arguing that reopening the investigation would render it meaningless. Judge Justin Walker, however, highlighted the inherent risk NAR took in depending on the continuity of the DOJ’s personnel after the election.
The decision by this appellate court will be closely watched, as it could herald significant changes in how real estate transactions are conducted, affecting agents, buyers, and sellers alike. Stay updated with St Louis Real Estate News for the latest on this critical legal development.
In a remarkable turn of events, just minutes after the jury sided with the homeseller-plaintiffs in the landmark Sitzer | Burnett trial, attorney Michael Ketchmark wasted no time in launching another legal salvo against the real estate industry. This new class action lawsuit, filed on behalf of three new homesellers, aims to further scrutinize the practices surrounding agent commissions.
The Defendants
This new lawsuit expands the list of defendants to include: Compass, eXp World Holdings, Redfin, Weichert Realtors, United Real Estate, Howard Hanna, and Douglas Elliman. Notably, the National Association of Realtors is once again named as a defendant, marking its continued entanglement in legal challenges related to commission structures.
The Allegations
The plaintiffs in this new case echo the grievances aired in the Sitzer | Burnett lawsuit, claiming they have been adversely affected by a “real estate industry conspiracy” that artificially inflates agent commissions. The suit alleges that this practice has a cascading effect, ultimately driving up costs for homesellers.
Legal Venue
The lawsuit has been filed in the United States District Court for the Western District of Missouri, the same jurisdiction that recently saw the Sitzer | Burnett plaintiffs awarded $1.785 billion in damages.
What This Means for the Industry
The filing of this new lawsuit so swiftly on the heels of the Sitzer | Burnett verdict could signal a wave of legal challenges aimed at traditional real estate commission models. Industry stakeholders will undoubtedly be watching closely as this new case unfolds, given its potential to further disrupt established practices and financial structures within the real estate market.
I’ve been discussing and writing about the Sitzer v National Association of REALTORS®, et al, lawsuit since it was originally filed in 2019. My previous articles on this case, as well as the Moerhl suit—a similar lawsuit filed in Illinois—can be found at the links below, which are in chronological order with the most recent first:
Today marks the end of the second week the trial has been underway, and it’s time to take stock of what has transpired so far.
Key Developments
Motions and Counter-Motions
Motion to Enforce Court Order: BHH Affiliates, LLC, HSF Affiliates, LLC, and HomeServices of America, Inc., filed a motion to enforce a court order. This motion was subsequently denied by District Judge Stephen R. Bough.
Deposition Designations: The court overruled most of the defendants’ objections regarding the deposition of Kevin Goffstein, allowing most of the deposition to be part of the trial record.
State Statutes and Regulations: A significant ruling came when the court prohibited the defendants from using state statutes and regulations as exhibits.
Legal Maneuvers
Pro Hac Vice Admission: Ian T. Hampton was allowed to appear pro hac vice to represent HomeServices of America, Inc.
Motions in Limine: Multiple motions in limine were filed by both parties, aiming to limit the evidence that can be presented during the trial.
Motions for Judgment as a Matter of Law: Both the National Association of Realtors and Keller Williams Realty, Inc., filed motions for judgment as a matter of law, which were denied by the court.
Trial Proceedings
Jury Trial: The jury trial has been ongoing, with proceedings taking place almost daily. The court has been in session for extended hours, indicating the complexity and importance of the case.
Witness Withdrawals: Plaintiffs withdrew David Liniger and Jay Papasan as witnesses to be called by videotaped deposition.
Jury Instructions: Various motions and objections were raised concerning the jury instructions, including a specific motion by Keller Williams Realty, Inc., for a Jury Instruction on Missouri State Law.
The first two weeks of the trial have been action-packed, with both sides employing various legal strategies. The court has been diligent in its rulings, aiming to ensure a fair trial. As we move into the next phase, it’s clear that the outcome of this case could have far-reaching implications for the real estate industry. Stay tuned for more updates as the trial progresses.
Seller impersonation fraud, also known as deed fraud, is a growing concern in the real estate industry. This type of fraud involves forging the property owner’s signature to illegally transfer ownership of the property. A recent case in the City of St. Louis serves as a cautionary tale for homeowners.
A Disturbing Case in St. Louis
Bernadette Brown, a member of the Royal Realty Group LLC, recently discovered that a property owned by the LLC at 1129 Penrose Street, St. Louis, MO 63107, was conveyed to Keith Brown via a Quit Claim deed. Bernadette Brown claims her name was forged on the deed, which was then notarized by a non-existent notary. This alarming incident underscores the need for homeowners to be vigilant in monitoring their property records.
How to Protect Yourself
Fortunately, there are several ways homeowners can protect themselves from becoming victims of deed fraud:
Property Fraud Alert Services
Many counties offer free services that alert property owners when deeds or other documents related to their property are filed. Property Fraud Alert is one such service, available in 23 counties in Missouri, including the City of St. Louis, St. Louis County, St Charles County, Jefferson, and Franklin. These alerts can serve as an early warning system, allowing you to take immediate action if you suspect fraudulent activity.
Title Reports
If you have concerns about your property, you can order a title report from a local title insurance company for a modest fee. M&I Title* in St. Louis, MO, is one such company that can provide this service. A title report will confirm the name under which the property is registered and identify any deeds of trust against it.
REALIST Reports
Agents from MORE, REALTORS can assist you by pulling a REALIST report from the MLS at no charge. This report will provide some basic information about your property, offering another layer of protection against fraud.
For more insights and advice on the St. Louis real estate market, stay tuned to StLouisRealEstateNews.com.
*Disclosure: I have a financial interest in M&I Title.
With changing regulations, subdivision restrictions, municipal ordinances, state and federal laws, landlords certainly have a lot to keep up with today to make sure they stay compliant in their rental business. I’ve been in the business over 40 years, have an interest-and a fair understanding of- laws that affect real estate, yet still find it challenging to stay updated. Given this, I can only imagine the challenge faced by someone with a full-time career who also owns rental properties as an investment. Perhaps, this might be a compelling reason to consider hiring a professional property manager for your rentals. However, that decision brings its own complexities, which I’ll delve into in a future article.
A recurring issue for landlords, which prompts many questions from agents in our firm, clients, and other landlords, revolves around service animals. The question is usually framed something like, “I don’t want any pets in my rental properties, so I have a strict no-pet policy but am I obligated to allow dogs or other pets if the tenant claims it’s a ‘service animal’?” Before I go further, let me remind you, I am not an attorney, this isn’t legal advice—in fact, it’s not advice at all. I’m merely sharing what I’ve learned on the topic to heighten awareness of the issue and to encourage those that are not familiar with it to learn what they need to learn or to seek out proper legal guidance to avoid problems.
Today, the Consumer Financial Protection Bureau (CFPB) released details of a Consent Order they reached with Wells Fargo Bank, N.A. in which Wells Fargo is ordered to pay “more than $2 billion in redress to consumers and a $1.7 billion civil penalty for legal violations across several of its largest product lines.” According to a press release issued by the CFPB, Wells Fargo’s “..illegal conduct led to billions of dollars in financial harm to its customers and, for thousands of customers, the loss of their vehicles and homes.” Rohit Chopra, the Director of the Consumer Financial Protection Bureau, stated “Wells Fargo’s rinse-repeat cycle of violating the law has harmed millions of American families”.
Provide more than $2 billion in redress to consumers: Wells Fargo will be required to pay redress totaling more than $2 billion to harmed customers. These payments represent refunds of wrongful fees and other charges and compensation for a variety of harms such as frozen bank accounts, illegally repossessed vehicles, and wrongfully foreclosed homes. Specifically, Wells Fargo will have to pay:
More than $1.3 billion in consumer redress for affected auto lending accounts.
More than $500 million in consumer redress for affected deposit accounts, including $205 million for illegal surprise overdraft fees.
Nearly $200 million in consumer redress for affected mortgage servicing accounts.
Stop charging surprise overdraft fees: Wells Fargo may not charge overdraft fees for deposit accounts when the consumer had available funds at the time of a purchase or other debit transaction, but then subsequently had a negative balance once the transaction settled. Surprise overdraft fees have been a recurring issue for consumers who can neither reasonably anticipate nor take steps to avoid them.
Ensure auto loan borrowers receive refunds for certain add-on fees: Wells Fargo must ensure that the unused portion of GAP contracts, a type of debt cancellation contract that covers the remaining amount of the borrower’s auto loan in the case of a major accident or theft, is refunded to the borrower when a loan is paid off or otherwise terminates early.
Pay $1.7 billion in penalties: Wells Fargo will pay a $1.7 billion penalty to the CFPB, which will be deposited into the CFPB’s victims relief fund.
On Monday of this week, a federal lawsuit was filed in the United Status District Court for the Western District of Washington by Natalie Perkins and Kenneth Hasson against Zillow Group, Inc. and Microsoft Corporation. The suit was filed as a class action complaint on behalf of “All natural persons in the United States and its territories whose Website Communications were captured through the use of Session Replay Code embedded in Zillow’s website”.
In the complaint, the plaintiff’s allege that the defendants, Zillow and Microsoft, violated the Washington Wiretapping Statute (Wash. Rev. Code §9.73.030, et. seq.) through the use of Microsoft’s Session Replay Code “…on Zillow’s website to spy on, automatically and secretly, and to intercept Zillow’s website visitors’ electronic interactions communications with Zillow in real time”. The second Count of the complaint, Invasion of Privacy – Intrusion Upon Seclusion, alleges that, using the same code as well as other methods which violated the plaintiff’s “…reasonable expectation of privacy in their Website Communications..” which violates the plaintiff’s “….right to privacy is also established in the Constitution of the State of Washington which explicitly recognizes an individual’s right to privacy under Article 1 §7.”
The lawsuit is asking the court for relief in the form of a judgment as follows:
A. Certifying the Class and appointing Plaintiffs as the Class representatives; B. Appointing Plaintiffs’ counsel as class counsel;
C. Declaring that Defendants’ past conduct was unlawful, as alleged herein; D. Declaring Defendants’ ongoing conduct is unlawful, as alleged herein;
E. Enjoining Defendants from continuing the unlawful practices described herein, and awarding such injunctive and other equitable relief as the Court deems just and proper;
F. Awarding Plaintiffs and the Class members statutory, actual, compensatory, consequential, punitive, and nominal damages, as well as restitution and/or disgorgement of profits unlawfully obtained;
G. Awarding Plaintiffs and the Class members pre-judgment and post-judgment interest;
H. Awarding Plaintiffs and the Class members reasonable attorneys’ fees, costs, and expenses; and
I. Granting such other relief as the Court deems just and proper.
The entire lawsuit filing, NATALIE PERKINS and KENNETH HASSON, individually and on behalf themselves and of all others similarly situated, Plaintiffs, v. ZILLOW GROUP, INC. and MICROSOFT CORPORATION, can be accessed here.
Maybe you’ve received an unsolicited offer recently to buy your home via email or postcard from Opendoor, a home buying firm. OpenDoor will make an offer on your house, bypassing the traditional method of selling your home via a REALTOR® using the MLS (which reaches 13,000+ REALTORS®) and entices you with catchy phrases on their website like “Get an instant offer and get paid” and “Skip showings and repairs”. It can sound good and SIMPLE but, according to the FTC complaint against OPENDOOR LABS, Inc. (Opendoor) and the agreement and consent order, “…consumers who sold to Opendoor have lost money compared to what they would have received through a traditional sale.”
In an article published yesterday, I referenced the Sitzer vs National Association of REALTORS law suit and said I would have a more in-depth discussion about that suit and here it is. The lawsuit was filed by Joshua Sitzer, Amy Winger, Scott and Rhonda Burnett and Ryan Hendrickson on June 21, 2019 against the National Association of REALTORS® and the parent companies of major real estate companies and franchises including Coldwell Banker, ReMax, Keller Williams and Berkshire Hathaway Homeservices.
The Sitzer lawsuit was filed in the United States District Court for the Western District of Missouri sought to be certified as a class action lawsuit on behalf of “all persons and entities who listed properties on one of four Multiple Listing Services…and paid a broker commission from at least April 29, 2015 until the Present…“. The four MLS’s listed in the suit that this applies to are:
Heartland MLS (Kansas City, MO)
MARIS MLS (St Louis, MO)
Southern Missouri Regional MLS (Springfield, MO)
CBOR MLS (Columbia, MO)
Last Friday, April 22, 2022, Stephen R. Bough, a Federal Judge for in the Western District of Missouri, issued an order granting the class action status for the lawsuit the Plaintiffs sought.
The Director for the Center for Disease Control (CDC), Dr. Rochelle Walensky, signed an extension to the eviction moratorium extending its expiration from June 30, 2021 to July 31, 2021. The CDC has indicated that “this is intended to be the final extension of the moratorium.”
The Consumer Financial Protection Bureau (CFPB) earlier this week proposed rule changes that would help prevent “avoidable foreclosures” that will come about when the current foreclosure ban expires June 30th. According to the CFPB, nearly 3 million homeowners are delinquent on their mortgages as a result of the COVID-19 pandemic as well as the economic issues that have come about as a result.
The CFPB’s proposed rule changes include:
Require a pre-foreclosure review period that would generally prohibit loan servicers from starting foreclosure until after December 31, 2021 on loans secured by a borrower’s principal residence.
Permit loan servicers to offer “certain streamlined loan modification options to borrowers with COVID-19-related hardships.”
The CFPB is going to accept comments on their proposed rules until May 11, 2011 and then afterward will decide how to proceed.
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About the CFPB (from their website)
The Consumer Financial Protection Bureau (CFPB) is a 21st century agency that helps consumer finance markets work by making rules more effective, by consistently and fairly enforcing those rules, and by empowering consumers to take more control over their economic lives. For more information, visitwww.consumerfinance.gov.
In December I wrote aboutmultiple class-action lawsuits filed against the National Association of REALTORS® (NAR), as well as some of the largest real estate brokerages, like ReMax and Keller Williams as well as a Department of Justice (DOJ) complaint filed again NAR over issues related to the lack of transparency in the home buying process.
The aforementioned complaints claim, among other things, that there has been an effort by the defendants to force buyers to pay an “inflated” price for a home as a result of the buyer not realizing the seller was forced to offer a commission to a buyer’s agent in order to get their listing in the MLS. In addition, they claim that NAR and its members misrepresented to buyers that a buyer’s agent’s representation and services were “free”, when in fact their agent was being paid a commission, which came from the seller and as a result, they claim this expense inflated the cost the buyer was forced to pay for the home.
I’m not here to address the accuracy of the claims made in these complaints nor get into an analysis of the legal merits of the case, but instead just want to address the changes I see that have already taken place or will take place in the home-buying process. NAR has already reached a settlement with the DOJ in which they (NAR) agreed to make several changes, so those are pretty easy to predict and I think I have a reasonable idea of some other changes that will come along in the comings months as well.
[xyz-ips snippet=”Homes-For-Sale”]
So, what are these changes I see coming to the home-buying process in terms of transparency?
Below are some of the changes I already see or expect to see:
Buyer’s agents aren’t FREE, nor should they be. NAR has already agreed to prohibit their members from claiming their services are free as they are not. A good buyer’s agent is invaluable to a home buyer and not only will earn the commission they make but in many cases, will “pay for themselves”. What I mean by this is their guidance and advice to their clients, which comes from their knowledge of the market and process, as well as experience, will help their clients avoid pitfalls and to make informed, good decisions.
Commission transparency. Prior to the lawsuits, many MLS’s around the country, including the one that serves the St Louis area, prohibited the amount of commission being offered to a buyer’s agent by the seller from being shown on broker’s real estate search websites. MARIS, the company that provides the MLS for St Louis area REALTORS® was quick and pro-active in this area and began allowing brokers to display buyer’s agent’s commission on their websites. I’m happy to say that my company, MORE, REALTORS® was, I believe, one of the first brokerages in the area to begin displaying this information. On STLMLS.com consumers can find the amount of commission being offered to buyer’s agents on listings. In the interest of full disclosure, I should mention I’m on the board of directors for MARIS and I’m an officer and shareholder of MORE, REALTORS.
Sellers won’t have to offer to pay a buyer’s agent to get in the MLS. While the first two bullet-points above are things that have happened, now I’m predicting what will happen. I believe that soon, perhaps as soon as “months” or as long as a year or two, the MLS requirement that a seller offers compensation to a buyer’s agent to have their listing be in the MLS will be dropped. This is nothing that should cause panic as buyer’s agents won’t go away nor work for free, it’s just the structure of the transaction will change. The changes made will no doubt provide a much greater level of transparency to the buyer though as I believe they will have a clear picture of the process including how their buyer’s agent is getting paid.
Agents won’t have to be REALTORS® to be part of the MLS. Even though this is already true in several parts of the country, most MLS’s require that agents be a REALTOR® (so be a member of the National Association of REALTORS® (NAR)) to join the MLS. I believe that all MLS’s in the country will be forced to allow participation by all licensed real estate brokers and agents and not just REALTORS®. I think my prior prediction will come to fruition sooner and this one will follow so it will likely be a couple of years at least before this happens.
The bottom line is some obstacles exist today for the real estate industry as well as there are changes taking place and more coming. While many folks don’t embrace change, call me a Pollyanna, but I think the result will be positive both for the real estate professional as well as the consumer that is buying or selling a home.
I’ll close with a quote on the topic of obstacles that I frequently share on a coaching session I do for our agents that is from Victor Kiam (the Remington razor guy) – “….there is little difference between obstacle and opportunity…”
The National Association of REALTORS® (NAR) has come under attack over the past few months as a defendant in two class-action lawsuits, Christopher Moehrl v The National Association of REALTORS® and Joshua A. Sitzer and Amy Winger v The National Association of REALTORS® filed in March and April of 2019 respectively, and, most recently, a complaint brought by the Department of Justice, United States v National Association of REALTORS® filed this month. The latter came with a pre-arranged proposed settlement with NAR. I should also mention the two class-action lawsuits have as additional defendants Realogy Holdings Corp (the own and operate several franchises, some of the local ones include Coldwell Banker-Gundaker, Better Homes & Gardens, ERA, Sotheby’s, and Century-21), HomeServices of America, Inc. (owner of Berkshire Hathway Home Services), Re/Max and Keller Williams.
While there are additional issues raised in the lawsuits and DOJ complaint, central to them are buyer’s agents’ commissions. Issues raised include:
From the DOJ complaint:
Allowing buyer brokers to misrepresent to buyers that a buyer broker’s services are free;
Enabling buyer brokers to filter MLS listings based on the level of buyer broker commissions offered and to exclude homes with lower commissions from consideration by potential home buyers;
From the lawsuits:
Sellers of residential property have been forced to pay inflated costs to sell their homes through forced payments of commissions to buyer brokers;
Home sellers have been forced to set buyer broker commissions to induce buyer brokers to show the sellers’ homes to prospective buyers;
Price competition has been restrained among brokers seeking to be retained by home buyers, and by brokers seeking to represent home sellers; and
Defendant Franchisors and their franchisees have inflated their profits by a significant margin by the increased total commissions and increased buyer broker commissions.
Today, as we celebrate the life of Dr. Martin Luther King, Jr. who is best known as a leader in the Civil Rights movement, I wanted to look at how his efforts also ultimately resulted in the Fair Housing Act, which sought to end discrimination in housing.
Through the efforts of the civil rights movement, Dr. King and others were able to get the attention of our nation resulting in President John F. Kennedy, in a nationally televised address on June 6, 1963, urging the nation to ” take action toward guaranteeing equal treatment of every American regardless of race.” Shortly after his address to the nation, President Kennedy proposed that Congress consider civil rights legislation that would address rights in many areas such as voting, public accommodations, school desegregation but not housing at the time. Even though President Kennedy was assassinated on November 22, 1963, his efforts beforehand still resulted in the Civil Rights Act of 1964 when, then President, Lyndon Johnson, signed into law on July 2, 1964.
The Civil Rights Act of 1964 prohibited discrimination in public places, provided for integration of schools and made employment discrimination illegal, however, it did not address housing.
Four years later came the Civil Rights Act of 1968, which is also referred to, and more commonly known, as the “Fair Housing Act of 1968″, which expanded the original civil rights act to include prohibiting discrimination concerning the sale, rental, and financing of housing based on race, religion, national origin or sex. President Lyndon Johnson signed the Fair Housing Act into law on April 11, 1968, one week after Dr. Martin Luther King, Jr. was assassinated.
Yesterday, the board of directors for the National Association of REALTORS® (NAR) approved a new policy dubbed the “Clear Cooperation Policy” which goes into effect January 1, 2020, and Multiple Listing Service’s (MLS) have until May 1, 2020, to adopt and implement.
While the vote by the board of directors, 729 in favor of it to 70 opposed, may not reflect it, there is a lot of controversy about this policy among real estate agents and brokers that are members of NAR. The two main changes this new policy bring about are that agents would be mandated to put, for all intents and purposes, 100% of their listings in the MLS system within one business-day of marketing the listing (marketing is defined to include putting a sign in the yard, telling someone about the listing, etc) and “MLS-exempt” listings will no longer be permitted.
Better for the consumer?
Proponents of the new NAR MLS policy say that this will be better for consumers by:
Making all available listings show in the MLS;
Giving more exposure to sellers of their listings by not permitting “MLS exempt”, “off-MLS”, “Coming Soon” or other marketing methods that may not include putting the listing in the MLS, or at least not initially;
Leveling the playing field, making all listings available to all consumers since listings could no longer be marketed through just social media, private networks, etc, but, instead, would be required to be put in the MLS;
Eliminating practices that may violate Fair Housing Laws by limiting what audience a particular listing is exposed to;
Opponents of the new NAR MLS policy argue that it is not better for consumers because:
It eliminates the opportunity for an experienced listing agent to determine, in cooperation with their seller client, the best means and methods to market their home to obtain maximum exposure and the highest price;
Pre-marketing, such as a coming soon promotion on social media before the listing is ready to go in the MLS in an effort to generate buzz and hype over the listing, would be prohibited. This is a method of marketing that, in our current low-inventory market, has been extremely effective in getting maximum exposure, and the highest price, for the seller.
Agents would not be permitted to quietly “test” the market to see how the listing, and/or it’s price, will be received by the market. This is often done by marketing the home before entry in the MLS to establish the right price. Once in the MLS, the days on market start working against the seller, as do price reductions, so coming into the MLS at the right price is essential for the seller.
It prevents a seller from using a REALTOR® when they wish to have their property marketed in a private manner and not publicly. This happens often when the seller is a high-profile individual that for security and/or privacy reasons, does not want photos and details about their home (including that they are selling it) publicly known. It can also occur in the case of a divorce, a distressed-type sale, etc;
Time will tell whether this proves to be good, or bad, for the industry and the consumer.
The MLS Technology and Emerging Issues Advisory Board, of the National Association of REALTORS® (NAR), proposed a rule change that is sparking some controversy among its’ members. The proposed “Clear Cooperation Policy” requires that all listings be put in the MLS within 24 hours of “marketing a property to the public“. The policy defines “public marketing” as including, but not limited to, “flyers displayed in windows, yard signs, digital marketing on public-facing websites, brokerage website displays (including IDX and VOW), digital communications marketing (email blasts), multi-brokerage listing sharing networks, and applications available to the general public”.
But, isn’t that how it is now?
Many consumers may having been thinking that this is how it was all along, that new listings were required to go into the MLS but, that is not currently the case. Presently (and going back to the beginning of the MLS here in St Louis, I believe), agents have been able to determine the best marketing methods for their client, as well as allow their client input as to whether they wanted their listing in the MLS immediately, after a period of time or even not at all.
I saw an article recently about the results of a survey done of home sellers that found that nearly half of them didn’t realize they pay the buyers’ agent commission when they sell their home.
Sellers pay the buyers’ agent in almost all home sales in St Louis…
While I don’t know for sure, I would guess that the people surveyed were homeowners that planned to sell their homes, rather than sellers that already had their homes listed for sale. I say this because the standard listing agreement used by St Louis REALTORS® spells out the total commission being charged the seller, as well as the portion of the commission that will be paid to the buyers’ agent which I would think, would cause the seller to realize they are paying commission to the buyers’ agent.
While the seller, when presented with the listing agreement, could opt to not offer to pay commission to the buyer’s agent, the MLS rules require that all listings in the MLS (which is most of the St Louis home sales) include an “offer of compensation” for the buyers’ agent, which will come from the seller. Therefore, the sellers have to either offer to pay the buyer’s agent or forego having their listing in the MLS, hence why sellers pay the buyers agent in nearly all instances. It’s probably worth noting at this juncture that this practice has come under attack in a recent class-action lawsuit filed by Christopher Moehrl against The National Association of REALTORS®, Realogy Holdings Corp, HomeServices of America, Inc, Re/Max Holdings, Inc and Keller Williams Realty, Inc. The suit, which can be accessed using the link below, seeks to ban this type of commission arrangement.
CoreLogic just released it’s 2017 Mortgage Fraud Report in which Missouri made the list of the five states with the highest year-over-year risk growth for mortgage fraud. The two types of fraud Missouri made the list on were Transaction fraud risk and Undisclosed Real Estate Debtfraud risk.
Below are some national highlights from the report (all figures are based upon 2nd quarter 2017 compared with 2nd quarter 2016):
Occupancy Fraud Risk increased nationally 7%
Transaction Fraud Risk increased 3.9%
Income Fraud Risk increased 3.5%
Property Fraud Risk decreased 1.9%
Undisclosed Real Estate Debt Fraud Risk decreased 2.7%
Identity Fraud Risk decreased 7.3%.
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Representative Gary Cross has introduced HB 705 which would repeal this legislation. Ironically, Rep Cross is the representative that first introduced the original legislation, HB 1862. I’m guessing he has come to realize the problems this legislation has caused, which I believe were unintended consequences, and has chosen to fix the issue which I praise him for!
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This legislative session, the Missouri State Legislature passed HB. 1862, which modifies provisions relating to the existing landlord-tenant law in Missouri, specifically, it repeals sections 534.350, 534.360, 535.030, 535.110, 535.160 and 535.300 of the Revised Statutes of Missouri and replaces them with five new sections as described in the bill. The bill has been delivered to Governor Nixon and, if signed by him, will go into effect August 28th of this year.
Why This New Law May Force Landlords (even licensed real estate agents) To Use Property Managers:
While this bill has some good things in it, such as establishing some reasonable procedures and time lines for a landlord regaining possession of a property as well as doing a little housekeeping with regard to what can be deducted from a security deposit, the bill also makes, what I believe to be, a very damaging change to the law with regard to security deposits. With regard to security deposits held by landlords, the bill changes section 535.300 (2) to read (emphasis is mine):
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Yesterday, St. Louis County Circuit Court Judge Gloria Reno granted a temporary restraining order against St Louis County to stop implementation of their recently adopted rental licensing ordinance. This is a huge victory for landlords, and property owners in general, as the new ordinance, as I wrote about previously, trampled property rights in many ways.
In response to the passage of the landlord licensing ordinance, the St Louis Association of REALTORS® file a lawsuit against St Louis County on December 29, 2015 in an effort to stop the legislation.
Hopefully, the temporary restraining order will be become a permanent injunction by the time the case comes to a close.
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Today most, if not all, landlords are aware of the Federal Fair Housing Act with regard to making various types of discrimination illegal when it comes to housing and, even if they don’t have a thorough understanding of all of the nuances of the act, at least have a basic understanding of it. However, today, a lack of a thorough understanding of the law, as well as the risks associated with violating it, or even being accused of violating it, can be quite costly to a landlord. Therefore, if you are considering becoming a landlord, or perhaps are already in the midst of building your real estate empire, spending time studying and understanding the Federal Fair Housing Act and how it applies to you would be time well spent and it would also be a great move to align yourself with a real estate professional with a good understanding of it that can help you navigate the regulatory waters a landlord must navigate today.
The Case of HUD vs Pebble Beach Apartments –
In July 2013 there was a fair housing violation complaint filed against the owner and manager of the Pebble Beach Apartments alleging they discriminated against a tenant based on familial status in violation of the Fair Housing Act.
The Allegations made by HUD after an investigation: (the numbering corresponds with the complaint itself)
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My, how fast things change! Nine days ago I wrote about a bad piece of legislation St Louis Councilman Michael O’Mara had proposed with regard to the licensing of landlords and then, two days later, updated the article with the good news that the bill was voted down. Well, in a last minute move, reportedly just minutes before the 6:00 pm start time of the council meeting last night, Representative Michael O’Mara, according to an article in STLTODAY this morning, “seized on a procedural loophole to return the issue to the council agenda.”
While the bill that was introduced last night, Substitute Bill No. 3 for Bill no 204, was slightly different than the bill proposed the last time, it’s still littered with issues that affect private property rights of individuals and should concern everyone, not just the landlords and tenants that are the largest of this legislation.
“I thought it was a travesty of government.”
According to the STLTODAY article, St Louis County Councilman Mark Harder (and real estate broker) said “I thought it was a travesty of government. This bill was brought to us moments before we walked on the dais tonight, and that is not the way you handle a transparent government…We were steamrolled.”
THERE IS STILL TIME TO STOP THIS!The St Louis County Council will take the final vote on this bill on October 20th, so you still have time to be heard! If would like to voice your opinion on this bill, I would suggest contacting the bills sponsor, St Louis County Councilman Michael O’Mara as soon as possible. You can contact him through the St Louis County Council website here or you can email him at MOmara@stlouisco.com or call him at 314.615.5439.
UPDATE – October 7, 2015:
Thanks to Councilman Kevin O’Leary’s unexpected call for a vote on the bill at last nights St Louis County Council meeting, as well as the votes cast against the bill by Council members Kevin O’Leary, Mark Harder, Colleen Basinger and Hazel Erby, the Residential Rental Property Licensing Code bill died last night in a 4 to 3 vote defeating it. The council members that voted in favor of enacting the bill into an ordinance were Council members Michael O’Mara, Dr. Sam Page and Pat Dolan.
It’s probably not over. Remember, last year the council was close to passing a similar bill and then took another shot at it this year. I firmly believe Councilman O’Mara will be back with this bill or a very similar one once the dust settles so be on the look out!
Last April I wrote an article about a bill in St Louis County introduced by Councilman Michael O’Marawhich me, and a whole lot of other people and groups with interest in preserving private property rights, thought would trample on those rights. Fortunately, as I later reported, the St Louis County Council chose not to move forward with the bill at that time. However, St Louis County Councilman Michael O’Marais back at it with a new proposed ordinance, Bill No. 204, which is pretty much the same as last years version.
St Louis County Bill No. 204 (known as the “Residential Rental Property Licensing Code“), like the similar Bill No. 73 last year, has met resistance again by people and organizations that feel the proposed legislation violates private property rights of property owners and may even be discriminatory. In a letter to Chairman Pat Dolan, and the members of the St louis County Council, Willie Jordan, Executive Director, and Zachary Schmook, Managing Attorney, for the Metropolitan St Louis Equal Housing & Opportunity Council (EHOC) stated the proposed bill “will have substantial negative, and potentially discriminatory, effects for tenants and vulnerable populations in St Louis County.” The EHOC letter goes on to cite six areas of major concern they have with the bill, many of which are the same, or similar, concerns I expressed last year in my article written when the legislation surfaced the first time.
If you would like to voice your opinion on this bill, I would suggest contacting the bills sponsor, St Louis County Councilman Michael O’Mara as soon as possible. You can contact him through the St Louis County Council website here or you can email him at MOmara@stlouisco.com or call him at 314.615.5439.
Which St Louis County Council members ARE and ARE NOT supporting this legislation? A the August 25, 2015 meeting of the St Louis County Council a vote was taken to “prefect” the bill and four of the council members voted in favor of this legislation and 3 against it. The members are listed below:
The Department of Justice (DOJ) announced today that they had reached an agreement with Eagle Bank and Trust Company to resolve allegations that “Eagle Bank and Trust Company (Eagle Bank) engaged in a pattern or practice of “redlining” predominantly African-American neighborhoods in and around St. Louis.” “Redlining” is defined by the DOJ as “the discriminatory practice by banks or other financial institutions to deny or avoid providing credit services to a consumer because of the racial demographics of the neighborhood in which the consumer lives.”
In order to resolve the allegations, Eagle Bank has agreed to:
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Paula Anderson, a landlord who owns a two-bedroom home in Santa Fe, New Mexico, was charged with discrimination by HUD after HUD’s investigation revealed that there was cause to believe Anderson had violated the Federal Fair Housing act as follows:
As described in paragraphs 7 to 25 above, Respondent Anderson violated 42 U.S.C. §§ 3604(f)(1) and (f)(2) as defined by 42 U.S.C. § 3604(f)(3)(B) because she discriminated in the terms, conditions, or privileges of Complainant’s tenancy and made her dwelling unavailable by refusing to allow Complainant to live with her assistance animal and daughter at the subject property when such accommodations were necessary to afford Complainant an equal opportunity to use and enjoy her dwelling. 42 U.S.C. §§ 3604(f)(1), (f)(2), and (f)(3)(B); 24 C.F.R. §§ 100.202(a), 100.202(b), and § 100.204(a).
The interesting thing about this case is that the “assistance animal” is a cat and while many landlords may be familiar with service dogs, particularly as used by visually impaired people, the claim by a tenant that a cat is a service animal may seem like a stretch and not be taken serious by a landlord but this case proves that it needs to be taken seriously.
The Federal Housing Finance Agency (FHFA) issued a release yesterday stating that while that agency acts as conservator for Fannie Mae and Freddie Mac, no “property of the Agency shall be subject to levy, attachment, garnishment, foreclosure, or sale without the consent of the Agency.” The release went on to say that Title 12 United States Code Section 4617(j)(3) “precludes involuntary extinguishment of Fannie Mae or Freddie Mac liens while they are operating in conservatorships and preempts any state law that purports to allow holders of homeownership association (HOA) liens to extinguish a Fannie Mae or Freddie Mac lien, security interest, or other property interest.”
Just in case a homeowners association or others are still considering giving it a try to have their lien take priority over a Fannie Mae or Freddie Mac lien, not that back in December 2014 the FHFA said they have an obligation to protect Fannie Mae and Freddie Mac’s rights and “will aggressively do so by bringing or supporting actions to contest HOA foreclosures that purport to extinguish Enterprise property interests in a manner that contravenes federal law.”
The U.S. Department of Housing and Urban Development (HUD) just announced that Wells Fargo Home Mortgage has agreed to a $5 Million settlement to resolve allegations that Wells Fargo discriminated against women who were pregnant, or had recently given birth, and were on maternity leave. (Click HERE for settlement agreement)
There have been a total of 190 maternity leave discrimination complaints filed with HUD against lenders in the past 4 years and those complaints have resulted in 40 settlements for a total of $1.5 million, prior to today’s settlement with Wells Fargo.
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City of St Peters MO agrees to pay fine and change discriminatory ordinance
The Justice Department announced today that the city of St. Peters, Mo. will pay $80,000 and make changes to its zoning laws to settle a lawsuit alleging that the city violated the federal Fair Housing Act (FHA) and Title II of the Americans with Disabilities Act (ADA) when it denied a zoning request to operate a group home for four women with intellectual disabilities. The lawsuit is part of the Justice Department’s continuing effort to enforce civil rights laws that require states and municipalities to end discrimination against, and unnecessary segregation of, persons with disabilities. The settlement was filed today and must be approved by the U.S. District Court for the Eastern District of Missouri. Continue reading “City of St Peters Settles with DOJ On Disability Discrimination Allegations“
The Missouri Supreme Court just handed down it’s decision today which upheld the priority of Missouri Condo Lien over a refinanced first mortgage. This case, which involves a condominium in Parkway Towers in the Country Club Plaza area of Kansas City, Missouri, was a huge win for condominium associations in Missouri.
Here is a recap of the facts of the case, from the Supreme Court opinion:
Trish Carcopa purchased the condo in 2004 and then in 2006 did a quit claim from herself to herself and and Nicole Carcopa.
In June 2006, the Carcopa’s refinanced their existing loan with a new loan through H&R Mortgage (later assigned to Homeward Residential.
There was a special assessment approved by the unit owners of the Parkway Towers condominiums and the Carcopa’s share was $78,144.64 which they did not pay.
In 2010 the Parkway Towers condo association brought suit to foreclose upon the condo to satisfy the unpaid lien for the special assessment and asserted that it’s lien took priority over the existing first deed of trust. The lender filed a motion asking the court to declare their first deed of trust superior to the condo lien but the court refused.
On July 16, 2013 the Supreme Court of Missouri upheld the lower courts decision confirming that the condo association lien was, in fact, superior to the first deed of trust.
Attorney General Chris Koster today filed a lawsuit against two related businesses that purported to provide loan modification and mortgage relief to desperate homeowners. Koster’s suit is against Legal Helpers Debt Resolution, LLC and Mortgage Law Group, LLC, as well as the companies’ managing partner, Jason Edward Searns; senior partner, Thomas Macey; and senior partner, Jeffery Aleman.
In December
