By NAR 2013 President Gary Thomas
When it comes to rules and regulations, the National Association of REALTORS® must always be vigilant. We have heard your concerns about the Federal Housing Administration’s (FHA) proposal to prohibit “dual agency” in pre-foreclosure transactions.
Know that NAR is working hard on your behalf to address this issue. On September 18, I sent FHA Commissioner Carol Galante a letter expressing NAR’s concerns about the new policy. As a result, the Department of Housing and Urban Development (HUD) has delayed implementation of its proposal, which would have been implemented on October 1. This gives NAR more time to continue our dialogue with agency officials.
Under the proposed policy, the Department of Housing and Urban Development (HUD) would no longer allow dual agency agreements in short sale transactions. This is when two agents, working for the same broker, represent the buyer and the seller. It also applies to a single agent representing both parties in a short sale transaction. In either case, under current law, dual agency transactions must be disclosed in writing and accepted by both parties.
According to HUD, the new policy comes as a result of the detection of fraud and abuse in pre-foreclosure sales. However, no statistics or reports were provided to NAR, detailing short sale fraud by real estate agents. As you are well aware, REALTORS® adhere to a strict Code of Ethics. Indeed, it was the founding principle on which NAR was created.
In our view, the fact that the policy would put excessive restrictions on agents representing buyers or sellers in the short sales process will only add to delays in the process. Some large brokers have hundreds of agents across multiple offices. Under HUD’s new policy, if one of those offices lists a short sale, none of the other agents can bring a buyer to that property.
One large broker told us that in his market, there are over 2000 agents across multiple offices. His firm has buyer’s and seller’s agents work on the same transaction in more than 30 percent of their sales. In rural areas with fewer agents, those numbers are even higher.
Brokers have also expressed concerns that the policy would conflict with certain MLS guidelines and state license laws. In every state, except Colorado, dual agency is allowed, as long as it is disclosed in writing to the parties involved in the real estate transaction and accepted by them. Most states have established standards and a complaint process in the event of suspected fraud.
We believe there are other ways that HUD could address concerns about the short sale process without restricting so many real estate agents from participating in pre-foreclosure transactions.
For example, Fannie Mae allows dual agency on short sales. They recently implemented a policy that requires all properties being considered for a short sale to be listed on an MLS, according to certain specifications. They provide relevant training and contact information to report potential fraud regarding a short sale.
NAR stands strongly against fraud of any kind, but we believe there is a more effective way to solve the problem then unnecessarily restricting dual agency. Let’s not kill the patient to cure the cancer. Instead, we should take the long view: establish a national standard that most states have already adopted and crack down on violations when and where they occur.