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Licensing Title Agents
Whatever happened to the title agents licensing bill? At one point, it 'had to happen.' Innumerable meetings were held. Forests were felled to provide the paper to print and distribute various drafts of proposed bills. Lincolnesque letters and articles were written and published. E-mails clogged up thousands of mailboxes. And now silence. There may very well be a bill on the Governor's desk in the near future. This article represents an attempt to explain why the agent-licensing bill is not there yet. The opinions expressed are the author's own, have no official sanctions and do not advocate any particular version of the bill.
'Controlled Business'
Let's start by defining our terms, the most important of which is 'controlled business.' For title purposes, a 'controlled business' is a joint venture (JV) or affiliated business arrangement (ABA) that contains as its members a company or individual that is: 1) a licensed title underwriter or an agent for a licensed title underwriter (title agent); and 2) another party who is actively involved, works in and derives income from the real estate industry. The other party could be an individual realtor, a mortgage broker, or an attorney, or it could be large, well-known companies or firms comprised of the foregoing. The second party has business that it controls, and that it could direct to a title agent or underwriter. However, instead of directing that business to a title agent or to an underwriter, the business provider directs the business to the new 'controlled business' of which it is a member. Pure, unadulterated 'controlled businesses' are an obvious way to kick back or split the title premium. Governmental regulators and many in the real estate industry view controlled businesses as being anti-competitive because they take business off the table and thereby lead to higher fees, expenses and charges to the consumer who ultimately pays for everything. Hence the rules for establishing controlled business are rigorously imposed by the Department of Housing and Urban Development (HUD) under RESPA (In particular, Section 8 of Real Estate Settlement and Procedures Act, 12 USC 2601, et. seq.) and by the New York State Insurance Department pursuant to opinions issued under Section 6409(d) of the Insurance Law, which is commonly referred to as the anti-kickback law. Truth be told, and as everyone involved in the real estate industry knows, while the statutes and regulations are rigorous, enforcement is anything but.
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