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House of Representatives Staff Analysis: PCS for HB 861 Residential Loan Alternative Agreements (2023)

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Congressional materials
Document type
2023 3236 Regulatory Reform Economic Development Subcommittee Proposed Committee Bill Anal

Summary

A Florida House of Representatives staff analysis, dated 3/14/2023, of the proposed committee substitute (PCS) for HB 861, Residential Loan Alternative Agreements, sponsored by the Regulatory Reform & Economic Development Subcommittee. The analysis describes current law on real estate brokers, listing agreements and the recording of documents, and reports that some brokerage firms have offered homeowners cash for exclusive listing rights under contracts lasting up to 40 years. It states that the bill would limit such agreements to no more than six months, bar them from creating liens, make them unenforceable and unrecordable, and treat violations as unfair or deceptive trade practices. The section directory lists creation of s. 475.279, F.S. and an effective date of July 1, 2023, and the fiscal analysis reports no impact on state or local government revenues or expenditures.

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“House of Representatives Staff Analysis: PCS for HB 861 Residential Loan Alternative Agreements (2023).” Original at www.flhouse.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2023-3236-regulatory-reform-economic-development-subcommittee-proposed-committee-bill-analyses-fn-pcs0861-rrs/, SHA-256 a361f74ff44c6476bcfe4bef7911932d26c111644bc9f3b46ab2a0596b6de2a6.

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                                  HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #:     PCS for HB 861 Residential Loan Alternative Agreements
SPONSOR(S): Regulatory Reform & Economic Development Subcommittee
TIED BILLS:       IDEN./SIM. BILLS:

    REFERENCE                                                   ACTION                  ANALYST            STAFF DIRECTOR or
                                                                                                           BUDGET/POLICY CHIEF

    Orig. Comm.: Regulatory Reform & Economic                                           Larkin             Anstead
       Development Subcommittee

                                                     SUMMARY ANALYSIS
A listing agreement forms a legally binding agreement with a real estate agent to sell property on behalf of the
owner. All listing agreements in Florida are required to have a definitive termination date and a real estate agent
may be disciplined by the Florida Real Estate Commission (FREC) for failing to include such. Generally, an agent
and the seller choose a mutually agreeable termination date, which they can modify or extend by mutual assent.

Generally, a real estate agent is entitled to a commission when that person is the procuring cause of a sale.
Recently, some real estate brokers have offered homeowners cash in exchange for the exclusive right to list an
owners’ property in the future. Some of the owners who entered into these agreements did not realize the listing
contract lasted up to 40 years and were later sued by the real estate broker for commission even though the
broker was not involved in the sale of the property.

    The bill:
     Limits the term of a residential loan alternative agreement for the disposition of residential real property
       to no more than six months and may not be renewed.
     Prohibits a residential loan alternative agreement from authorizing a person to place a lien or otherwise
       to encumber any residential real property.
     Prohibits residential loan alternative agreements from constituting a lien, encumbrance, or security
       interest on the property.
     Prohibits courts from enforcing a residential loan alternative agreement by a lien or by constructive trust
       in the residential real property or upon the proceeds of the disposition of the residential real property.
     Requires specific notice and the written consent of the homeowner or seller before a residential loan
       alternative agreement may be assigned to another person.
     Defines “disposition” as a transfer or voluntary conveyance of the title or other ownership interest in
       residential real property.
     Defines “residential alternative loan alternative agreement” as a signed writing between a person and
       seller or homeowner that:
      o grants the exclusive right to a person to act as a broker for the disposition of the property,
      o provides an effective duration of more than two years, and
      o provides the person pay compensation to the seller or owner.
     Defines “residential real property” as an improved residential property of four units or fewer or
       unimproved residential real property intended for four units or fewer.
     Provides that a residential loan alternative agreement is unenforceable in law or equity and may not be
       recorded by the clerk of the circuit court.
     Makes violations of certain provisions an unfair or deceptive trade practice within the meaning of
       Florida Deceptive and Unfair Trade Practices Act.

The bill provides an effective date of July 1, 2023.

The bill does not appear to have a fiscal impact on local or state governments.


                                                        FULL ANALYSIS
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: pcs0861.RRS
DATE: 3/14/2023
                                                  I. SUBSTANTIVE ANALYSIS

    A. EFFECT OF PROPOSED CHANGES:
          Current Situation

          Background on Real Estate Brokers

          The Florida Real Estate Commission (FREC), within the Division of Real Estate (Division), at the
          Department of Business and Professional Regulation (Department), administers and enforces real
          estate licensing laws.1 The FREC is also empowered to adopt rules that enable it to implement its
          statutorily authorized duties and responsibilities.2

          FREC may discipline real estate brokers by denying, refusing to renew, suspending, or revoking their
          permit or imposing administrative fines if FREC has found that the broker has violated the practice act,
          including:3
           engaging in dishonest, fraudulent transactions;
           advertising property or services in a manner which is fraudulent, false, deceptive, or misleading in
              form or content;
           making deceptive, untrue, or fraudulent representations in or related to the practice of a profession
              or employing a trick or scheme in or related to the practice of a profession;
           failing to include in any written listing agreement a definite expiration date, description of the
              property, price and terms, fee or commission, and a proper signature of the principal, or
           failing to perform any statutory or legal obligation placed upon a licensee.

         A real estate broker or sales associate may be convicted for a second degree misdemeanor for
         recording a contract, or other writing which purports to affect the title of, or encumber, any real property
         if the same is known to her or him to be false, void, or not authorized to be placed of record, for the
         purpose of collecting a commission, or to coerce the payment of money to the broker or sales associate
         or other person.4 This does not prohibit a broker or a sales associate from recording a judgment
         rendered by the court, placing a lien on a property where expressly permitted by contractual
         agreement, or otherwise allowed by law.5

          A person who operates as a broker or sales associate without being the holder of a valid and current
          active license commits a felony of the third degree.6

          Broker-Property Owner Relationship

          A broker is a person or agency who arranges transactions between a buyer and a seller for a
          commission.7 “In the absence of a special contract, a broker is entitled to a commission when that
          person is the procuring cause of a sale.”8



          Real Estate Listing Agreements 9



1 Ch. 475, Part I, F.S.
2 These rules are contained in ch. 61J2, F.A.C.
3 Ss. 475.25 and s. 455.227, F.S.
4 S. 475.42(1)(i) and (2), F.S.
5 S. 475.42(1)(i), F.S.
6 S. 475.42(1)(a), F.S.
7 S. 475.01(1)(a), F.S.
8 Esslinger-Wooten-Maxwell, Inc. v. Lones Family Ltd. P'ship, 298 So. 3d 1176, 1180 (Fla. 3d DCA 2020).
9 Jessica Cody. Understanding the Listing Agreement When Selling Your Home , Home Light (Feb. 10, 2023),

https://www.homelight.com/blog/listing-agreement/.
STORAGE NAME: pcs0861.RRS                                                                                     PAGE: 2
DATE: 3/14/2023
         A listing agreement is a legally binding contract that establishes the duties of the seller and the real
         estate agent. The time period for these agreements must be defined in the contract.10 Typically, the
         contract terms may be negotiated. For example, the expiration date, commission, and duties. 11 There
         are three types of listing agreements:

            Types of Listing Agreements                                                       Description
                                                                      Gives only one agent the right to find a buyer.
          Exclusive Right-to-Sell Agreement                           Real estate broker receives commission when the property
                                                                       is sold regardless of who finds the buyer.
                                                                      Any agent that is part of the real estate agency may sell the
                                                                       property and collect commission.
                                                                      Seller is allowed to sell property without assistance from
        Exclusive Agency Listing Agreement
                                                                       the agent.
                                                                      If the seller sells the property without assistance of the
                                                                       agent, the agent is not entitled to commission.
                                                                      The seller pays commission to the agent only if the house
                Open Listing Agreement
                                                                       sells through the efforts of that agent.

         Recording Documents Related to Real Estate Agreements With the Clerk of the Court

         The Clerk of the Court is required to record certain instruments presented to them, upon payment of
         service charges. A document submitted to the clerk of court is deemed validly recorded and acts as
         notice to other persons for certain purposes. Clerks record documents such as agreements, notices or
         claims of lien, and other instruments relating to the ownership, transfer, or encumbrance12 of or claims
         against real or personal property or any interest in it.13

         An encumbrance, such as a recorded lien, creates a cloud on the property’s title. 14 This affects the
         marketability of the property and the ability for a homeowner to sell or refinance their home. Currently, a
         broker may place a lien on a property where expressly permitted by contractual agreement or
         authorized by law.15

         Recent Events

         Certain Florida licensed real estate brokerage firms have been offering homeowners cash, advertised
         as an alternative loan, in exchange for exclusive rights to list a homeowners’ property when they decide
         to sell.

         Some homeowners enter into these residential loan alternative agreements without recognizing that
         they may last up to 40 years. Years later when a homeowner sells their property, without the brokerage
         firm, the brokerage firm files a lien against the property for 3% of its value even though the brokerage
         firm never performed the listing services.16




10 S. 475.25(1)(r),   F.S.
11 Jamie Johnson, What Is a Listing Agreement?, Rocket Mortgage (Feb. 19, 2023), https://www.rocketmortgage.com/learn/listing-

agreement (visited March 2, 2023).
12 “An encumbrance is a claim against an asset by an entity that is not the owner. Common types of encumbrances against real

property include liens, easements, leases, mortgages, or restrictive covenants. Encumbrances impact the transferability and/or use of
subjected properties.” Encumbrance, Legal Information Institute (last visited Feb. 28, 2023),
13 S. 28.222(3)(a), F.S.
14 A cloud on title means a claim that affects the owners hip of a property. Cloud on Title, Legal Information Institute,

https://www.law.cornell.edu/wex/cloud_on_title (visited March 2, 2023).
15
   S. 475.42(1)(i), F.S.; see also, S. 702.01, F.S. If the debt is not paid to the creditor, the creditor can file a foreclosure action to have
the court enforce the lien
16 Rebecca Liebson, Florida Company Pays Quick Cash to List Your Home. the Catch? A 40 -Year Contract, Tampa Bay Times (Sept.
6, 2022), https://www.tampabay.com/news/real-estate/2022/09/06/florida-company-pays-quick-cash-to-list-your-home-the-catch-a-40-
year-contract/.
STORAGE NAME: pcs0861.RRS                                                                                                               PAGE: 3
DATE: 3/14/2023
        One of these companies is MV Realty, which operates in 33 states. It has acknowledged that more than
        30,000 people have signed similar types of contracts.17

        Recently, the Florida18, Massachusetts 19, Pennsylvania20, and Ohio, Attorney Generals 21 have filed
        lawsuits against MV Realty for its misleading contractual terms related to these types of “listing
        agreements”.

        Florida Deceptive and Unfair Trade Practices Act (FDUTPA or Act)

        The Florida Deceptive and Unfair Trade Practices Act (FDUTPA or Act) declares unlawful any unfair or
        deceptive acts or practices committed in the conduct of any trade or commerce. 22 The Act is a separate
        cause of action intended to be an additional remedy to other civil remedies at law, and it is aimed
        toward making consumers whole for losses caused by fraudulent consumer practices. The Act protects
        consumers from deceptive acts, and protects the consuming public and legitimate business enterprises
        from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts
        or practices in the conduct of any trade or commerce. It applies to private causes of action arising from
        single unfair or deceptive acts in the conduct of any trade or commerce, even if it involves only a single
        party, a single transaction, or a single contract.

    Effect of the Bill

    The bill:
     Limits the term of a residential loan alternative agreement for the disposition of residential real property
       to no more than six months and may not be renewed.
     Prohibits a residential loan alternative agreement from authorizing a person to place a lien or otherwise
       to encumber any residential real property.
     Prohibits residential loan alternative agreements from constituting a lien, encumbrance, or security
       interest in the residential real property.
     Prohibits courts from enforcing a residential alternative loan alternative agreement by lien or
       constructive trust in the residential real property or upon the proceeds of the disposition of the
       residential real property.
     Requires specific notice and the written consent of the homeowner or seller before a residential loan
       alternative agreement may be assigned to another person.
     Defines “disposition” as a transfer or voluntary conveyance of the title or other ownership interest in
       residential real property.
      o Defines “residential alternative loan alternative agreement” as a signed writing between a person
          and seller or owner of residential real property that:
                     Grants an exclusive right to a person to act as a broker for the disposition of the
                        property;
                     Has an effective duration of more than two years; and
                     Provides the person pay compensation to the seller or owner.


17 Angie Moreschi, MV Realty Facing Congressional Scrutiny Following Channel 11 Investigation , WPXI, (Dec. 21, 2022),

https://www.wpxi.com/news/local/mv-realty-facing-congressional-scrutiny-following-channel-11-
investigation/Y4HNN2X24NEQRFMTNVLB2QNHNQ/.
18
   Attorney General Moody Takes Legal Action against MV Realty for Swindling Florida Homeowners, Office of the Attorney General
(Nov. 29,2022), http://www.myfloridalegal.com/newsrel.nsf/newsreleases/E9E4A2F7281415CE8 5258909007259EC.
19 Cheryl Fiandaca, Massachusetts Attorney General Sues MV Realty Company after I-Team Investigation, CBS News. (December 14,

2022), https://www.cbsnews.com/boston/news/mv-realty-attorney-general-lawsuit-massachusetts-iteam-investigation/.
20 AG Shapiro Sues Real Estate Brokerage Firm MV Realty over Misleading Homeowner Benefit Program, Pennsylvania Office of

Attorney General (Dec. 14, 2022), https://www.attorneygeneral.gov/taking-action/ag-shapiro-sues-real-estate-brokerage-firm-mv-realty-
over-misleading-homeowner-benefit-program/#:~:text=Homeowner%20Benefit%20Program-
,AG%20Shapiro%20Sues%20Real%20Estate%20Brokerage%20Firm,Over%20Misleading%20Homeowner%20Benefit% 20Program&a
mp;text=HARRISBURG%20%E2%80%94%20Attorney%20General%20Josh%20Shapiro,and%20its%20founder%2C%20Amanda%20
Zachman.
21 “AG Yost Sues MV Realty, Founder and Broker for Illegal Practices, Ohio Attorney General Dave Yost (Feb. 15, 2023),

https://www.ohioattorneygeneral.gov/Media/News -Releases/February-2023/AG-Yost-Sues-MV-Realty-Founder-and-Broker-for-Ille.
22 ss. 501.201-213, F.S.

STORAGE NAME: pcs0861.RRS                                                                                                    PAGE: 4
DATE: 3/14/2023
      Defines “residential real property” as an improved residential property of four units or fewer or
       unimproved residential real property intended for four units or fewer.
      Provides that a residential loan alternative agreement is unenforceable in law or equity.
      Provides that a residential loan alternative agreement may not be recorded by the clerk of the circuit
       court.
      Makes a violation of this section an unfair or deceptive trade practice within the meaning of Florida
       Deceptive and Unfair Trade Practices Act.

   B. SECTION DIRECTORY:
       Section 1: Creates s. 475.279, F.S.; defines terms; specifies limitations on residential loan alternative
       agreements; requires notice and written consent in certain circumstances; provides penalties for
       violations.

       Section 2: Provides an effective date of July 1, 2023.


                         II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT

   A. FISCAL IMPACT ON STATE GOVERNMENT:

       1. Revenues:
           None.

       2. Expenditures:
           None.

   B. FISCAL IMPACT ON LOCAL GOVERNMENTS:

       1. Revenues:
           None.

       2. Expenditures:
           None.

   C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
       The bill may have a positive economic impact on homeowners selling their property.

       As for real estate brokerage firms, the bill may have a negative economic impact if they use the
       residential loan alternative agreement practice.

   D. FISCAL COMMENTS:
       None.


                                                III. COMMENTS

   A. CONSTITUTIONAL ISSUES:

       1. Applicability of Municipality/County Mandates Provision:
       Not applicable.
       2. Other:

STORAGE NAME: pcs0861.RRS                                                                                   PAGE: 5
DATE: 3/14/2023
          None.

   B. RULE-MAKING AUTHORITY:
       None.

   C. DRAFTING ISSUES OR OTHER COMMENTS:
       Language in the bill may need to be clarified to distinguish between “having an effective duration of
       more than 2 years” and “may not exceed a term of 6 months.”

       Clerks of court will have to train their employees to recognize residential loan alternative agreements
       related to the provisions in the bill that prohibit recording such agreements.

                            IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES




STORAGE NAME: pcs0861.RRS                                                                                 PAGE: 6
DATE: 3/14/2023


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