18 May Florida Regulatory Update
Florida Rules 69B-186.010
The Florida Department of Financial Services Division of Insurance Agents and Agency Services (“Department”) recently amended its rules regarding unfair methods of competition and unfair or deceptive acts or practices in the transaction of title insurance, effective May 13, 2018.
A “referrer of settlement service business” means any person who is in a position to refer title insurance business incident to or as part of a real estate transaction or an associate of such person. A referrer of settlement service business may be a title insurance agent, title insurance agency, title insurance company, attorney, real estate broker, real estate agent, real estate licensee, broker associate, sales associate, mortgage banker, mortgage broker, lender, real estate developer, builder, property appraiser, surveyor, escrow agent, closing agent, or any other person or entity involved in a real estate transaction for which title insurance could be issued; or any employee, officer, director, or representative of such person or entity.
The lists below are intended as examples and are not exhaustive. The rule does not prohibit inducements or rebates provided by filed or approved rates or rating manuals, advertising gifts permitted by law, or inducements and rebates otherwise expressly allowed by law.
As they relate to the transaction of title insurance, the following activities, whether performed directly or indirectly, for or by any referrer of settlement service business, are inducements for the sale, placement, or referral of title insurance business and are prohibited:
- Facilitating any discount, reduction, credit, or paying any fee or portion of the cost of an inspection, inspection report, appraisal, or survey, including wind inspection, to or for a purchaser or prospective purchaser of title insurance.
- Providing membership in any organization, society, association, guild, union, alliance or club at a discount, reduced rate, or at no cost to a referrer of settlement service business.
- Making or offering to make a charitable or other tax-deductible contribution on behalf of the purchaser or prospective purchaser of title insurance.
- Providing or offering stocks, bonds, securities, property, or any dividend or profit accruing or to accrue thereon to a referrer of settlement service business. However, the use of lawful affiliated business arrangements that are permitted under the Federal Real Estate Settlement Procedures Act would not be a violation and is permissible.
- Providing or offering employment to a referrer of settlement service business in exchange for the purchase of title insurance.
- Providing or paying for the printing of bulletins, flyers, post cards, labels, etc. that promote the business of a referrer of settlement service business.
- Furnishing or paying for the furnishing of office equipment (fax machines, telephones, copy machines, etc.) to a referrer of settlement service business.
- Providing or paying for cellular telephone contracts for a referrer of settlement service business.
- Providing simulated panoramic home and property tours to real estate brokers or real estate sales associates that they utilize to promote their listings.
- Providing or paying for gift cards or gift certificates to or for a referrer of settlement service business or to a purchaser or prospective purchaser of title insurance.
- Sponsoring and hosting, or paying for the sponsoring and hosting, of open houses for real estate brokers or real estate sales associates to promote their listings.
- Providing or paying for food, beverages, or room rentals at events designed to promote the business of a referrer of settlement service business other than the title insurance agent or agency.
- Paying advertising costs to advertise and promote the listings of real estate brokers or real estate sales associates via publications, signs, emails, websites, web pages, banners, or other forms of media.
- Providing an endorsement, designation of preferred status, approved status, or featured partner status on publications, signs, emails, websites, web pages, banners or other forms of media promoting the business of real estate brokers or real estate sales associates.
- Paying a referrer of settlement service business to fill out processing (order) forms in exchange for title insurance contracts.
- Providing “leads” or mailing lists to or on behalf of a referrer of settlement service business at no cost or a reduced cost.
- Entering into any arrangement to provide unearned compensation to a referrer of settlement service business.
- Providing, or offering to provide, non-title services, without a charge that is commensurate with the actual cost, to a referrer of settlement service business.
- Waiving of fees, costs, or premiums for title updates or endorsements requested after the issuance of the title insurance policy.
- Assuming any party’s responsibility to provide refunds to consumers under applicable laws and regulations.
The following expenditures, however, are not considered violations:
- Promotional items with a company logo of the title insurance agent or agency, with a value not to exceed the permissible amount per item. “Promotional item” does not include a gift certificate, gift card, or other item that has a specific monetary value on its face, or that may be exchanged for any other item having a specific monetary value;
- Furnishing educational materials, such as fliers, brochures, pamphlets, or Frequently Asked Question sheets, exclusively related to title insurance for a Referrer that are not conditioned on the referral of business and that do not involve the defraying of expenses that otherwise would be incurred by a referrer of settlement service business;
- Compensation paid to a referrer of settlement services for goods and services actually performed at amounts not exceeding the reasonable fair market value of the goods and services and that is not intended to induce the referral of title insurance business;
- Any advertising or marketing activities that directly promote the title insurance business of the title insurance agent or agency, which may include joint participation in marketing with another party provided that the agent or agency pays the proportionate share or fair market value of the costs;
- A payment by a title insurance company to its duly appointed agent for services actually performed in the issuance of a title insurance policy; and
- A payment to any person of a bona fide salary or compensation or other payment for goods or facilities actually furnished or for service actually performed.
A licensed and appointed title insurance agent is not prohibited from affixing a notice to any contract or agreement stating “The terms of this contract are agreed to, but only to the extent that they do not violate the provisions of Rule 69B-186.010, F.A.C., or paragraph 626.954(1)(h), F.S.,” or substantially similar language.