WASHINGTON – A class-action lawsuit is focusing fresh attention on a long-festering consumer issue in real estate: alleged steering of home buyers to affiliated title, settlement and mortgage companies by large realty brokers – sometimes costing consumers hundreds of dollars compared with fees and services offered by non-affiliated competitors.
Two buyers in Minnesota filed suit Feb. 21 against Coldwell Banker Burnet Realty, one of the largest realty firms in the state, charging that it breached its fiduciary duties under state law when it steered the buyers to its own title and settlement affiliate, Burnet Title, despite knowing that the affiliate’s fees were significantly higher than those available from non-affiliated firms.
A spokeswoman for Coldwell Banker Burnet said the company had no comment on the allegations and does not discuss pending litigation.
The class action, filed by Kenneth and Dylet Grady in state district court, potentially has national significance because many large real estate brokerage firms have financial relationships with one or more affiliates in the title, settlement and mortgage businesses. Properly structured, these affiliate relationships comply with federal anti-steering and anti-kickback rules, and have withstood numerous legal challenges.
Real estate brokerages increasingly rely on income from their affiliates, and often seek to maximize their “capture rates” – the percentage of all home-sale transactions that use the affiliates’ services. They also argue that even if the affiliates’ fees or mortgage rates are not the lowest available, the quality and dependability of the affiliates’ services more than compensate for any price differences.
In the case of a broker-client relationship, fiduciary duty means that a real estate broker is bound to put a client’s best interests ahead of the broker’s, and must not profit from the fiduciary relationship unless the client consents. A fiduciary is also supposed to disclose material facts that may affect the client’s best interests.
The Gradys level charges in their suit that could be duplicated in other states: When real estate brokers or sales associates knowingly steer clients to higher-cost services that benefit the broker financially, they may violate the fiduciary responsibilities owed to those consumers. The Gradys also allege that Burnet Realty failed to disclose that its affiliated title company “retains at least 75 percent of each insurance premium,” or that the title affiliate’s fees “are among the highest, if not the highest, in Minnesota.” On a typical $250,000 home purchase, according to the suit, the title affiliate’s fees “can be several hundred dollars more” than those of non-affiliated competitors.
Among other alleged breaches of fiduciary duty, according to the suit, the real estate broker did not “disclose that it pressures its sales associates to direct their clients’ closing and title insurance business” to the affiliate. Nor did the firm disclose that it offers financial incentives to sales associates who cooperate, including a “quick check” program that pays agents’ commissions at closings, rather than at a later date, provided the closing occurs at Burnet Title.
The suit also charges that other incentives include a “partnership compensation plan,” that pays for retirement plan contributions, marketing expenses and “bonus pools” that are “tied, in part, to the direction of clients’ business” to the title affiliate.
The Gradys’ class action – which asks for what lawyers estimate to be millions of dollars in refunds and damage awards to more than 10,000 clients – can be seen as part of a backlash in a number of states and in Congress against title insurance and real estate industry practices. In a congressional hearing last spring, Colorado’s then-deputy insurance commissioner, Erin Toll, criticized “the pervasiveness of kickback schemes” involving realty and title firms in her state.
An independent title insurance agent from Minneapolis, Douglas Miller, president and CEO of Title One, testified that in Minnesota “the title insurance industry and the real estate industry have locked up almost the entire marketplace” through affiliated business relationships. The arrangements take multiple forms, Miller said, but they all add up to the same result: “steering real estate consumers into overpriced ancillary services for secret profits.”
Miller told the hearing that his firm refuses to participate in affiliate relationships with realty firms or lenders, and charges the lowest insurance premiums in the market. But Miller’s company still finds it difficult to attract business from home buyers because realty agents won’t send customers his way.
Consumers should remember that federal law guarantees the right to shop for the lowest cost title, closing and other services. Check out the competition to be sure you’re getting the very best possible deal.
Kenneth R. Harney is a nationally syndicated real estate columnist based in Washington, D.C. You can e-mail him at kenharney@earthlink.net.
