(1) As used in this section, unless the context otherwise requires: (a) "Affiliated business arrangement" means an arrangement in which: (I) A provider of settlement services or an associate of a provider of settlement services has either an affiliate relationship with or a direct beneficial ownership interest of more than one percent in another provider of settlement services; and (II) A provider of settlement services or the associate of a provider directly or indirectly refers settlement service business to another provider of settlement services or affirmatively influences the selection of another provider of settlement services. (b) "Associate" means a person who has one or more of the following relationships with a person in a position to refer settlement service business: (I) A spouse, parent, or child of the person; (II) A corporation or business entity that controls, is controlled by, or is under common control with the person; (III) An employer, officer, director, partner, franchiser, or franchisee of the person, including a broker acting as an independent contractor; or (IV) Anyone who has an agreement, arrangement, or understanding with the person, the purpose or substantial effect of which is to enable the person in a position to refer settlement service business to benefit financially from referrals of the business. (c) "Settlement service" means any service provided in connection with a real estate settlement including, but not limited to, the following: (I) Title searches; (II) Title examinations; (III) The provision of title certificates; (IV) Title insurance; (V) Services rendered by an attorney; (VI) The preparation of title documents; (VII) Property surveys; (VIII) The rendering of credit reports or appraisals; (IX) Real estate appraisal services; (X) Home inspection services; (XI) Services rendered by a real estate broker; (XII) Pest and fungus inspections; (XIII) The origination of a loan; (XIV) The taking of a loan application; (XV) The processing of a loan; (XVI) Underwriting and funding of a loan; (XVII) Escrow handling services; (XVIII) The handling of the processing; and (XIX) Closing of settlement. (2) (a) An affiliated business arrangement is permitted where the person referring business to the affiliated business arrangement receives payment only in the form of a return on an investment and where it does not violate the provisions of section 12-10-217. (b) If a licensee or the employing broker of a licensee is part of an affiliated business arrangement when an offer to purchase real property is fully executed, the licensee shall disclose to all parties to the real estate transaction the existence of the arrangement. The disclosure shall be written, shall be signed by all parties to the real estate transaction, and shall comply with the federal "Real Estate Settlement Procedures Act of 1974", as amended, 12 U.S.C. sec. 2601 et seq. (c) A licensee shall not require the use of an affiliated business arrangement or a particular provider of settlement services as a condition of obtaining services from that licensee for any settlement service. For the purposes of this subsection (2)(c), "require the use" shall have the same meaning as "required use" in 24 CFR 3500.2 (b). (d) No licensee shall give or accept any fee, kickback, or other thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or part of a settlement service involving an affiliated business arrangement shall be referred to any provider of settlement services. (e) Nothing in this section shall be construed to prohibit payment of a fee to: (I) An attorney for services actually rendered; (II) A title insurance company to its duly appointed agent for services actually performed in the issuance of a policy of title insurance; (III) A lender to its duly appointed agent for services actually performed in the making of a loan. (f) Nothing in this section shall be construed to prohibit payment to any person of: (I) A bona fide salary or compensation or other payment for goods or facilities actually furnished or for services actually performed; (II) A fee pursuant to cooperative brokerage and referral arrangements or agreements between real estate brokers. (g) It shall not be a violation of this section for an affiliated business arrangement: (I) To require a buyer, borrower, or seller to pay for the services of any attorney, credit reporting agency, or real estate appraiser chosen by the lender to represent the lender's interest in a real estate transaction; or (II) If an attorney or law firm represents a client in a real estate transaction and issues or arranges for the issuance of a policy of title insurance in the transaction directly as agent or through a separate corporate title insurance agency that may be established by that attorney or law firm and operated as an adjunct to his or her law practice. (h) No person shall be liable for a violation of this section if the person proves by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding maintenance of procedures that are reasonably adopted to avoid the error. (3) On and after July 1, 2006, a licensee shall disclose at the time the licensee enters into or changes an affiliated business arrangement, in a form and manner acceptable to the commission, the names of all affiliated business arrangements to which the licensee is a party. The disclosure shall include the physical locations of the affiliated businesses. (4) On and after July 1, 2006, an employing broker, in a form and manner acceptable to the commission, shall at least annually disclose the names of all affiliated business arrangements to which the employing broker is a party. The disclosure shall include the physical locations of the affiliated businesses. (5) The commission may promulgate rules concerning the creation and conduct of an affiliated business arrangement, including, but not limited to, rules defining what constitutes a sham affiliated business arrangement. The commission shall adopt the rules, policies, or guidelines issued by the United States department of housing and urban development concerning the federal "Real Estate Settlement Procedures Act of 1974", as amended, 12 U.S.C. sec. 2601 et seq. Rules adopted by the commission shall be at least as stringent as the federal rules and shall ensure that consumers are adequately informed about affiliated business arrangements. The commission shall consult with the insurance commissioner pursuant to section 10-11-124 (2), concerning rules, policies, or guidelines the insurance commissioner adopts concerning affiliated business arrangements. Neither the rules promulgated by the insurance commissioner nor the commission may create a conflicting regulatory burden on an affiliated business arrangement. (6) The division of real estate may share information gathered during an investigation of an affiliated business arrangement with the division of insurance.
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