Preproposal statement of inquiry was filed as WSR 08-13-096.
Title of Rule and Other Identifying Information: These proposed rules define things of value that a title company is permitted to give to any person in a position to refer or influence the referral of title insurance business, as required by RCW 48.29.005(5).
Hearing Location(s): Insurance Commissioner's Office, Room TR 120, 5000 Capitol Boulevard, Tumwater, WA 98504-0255, on January 9, 2009, at 1:30 p.m.
Date of Intended Adoption: January 12, 2009.
Submit Written Comments to: Kacy Scott, P.O. Box 40258, Olympia, WA 98504-0258, e-mail KacyS@oic.wa.gov, fax (360) 586-3109, by January 7, 2009.
Assistance for Persons with Disabilities: Contact Lorie Villaflores by January 7, 2009, TTY (360) 586-0241 or (360) 725-7087.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: These proposed rules implement RCW 48.29.210 enacted in 2008 that prohibits title insurance companies and title insurance agents from giving things of value to any person in a position to refer or influence the referral of title insurance business to the title company except as permitted by rules adopted by the commissioner. The proposed rule making will repeal the existing rule (WAC 284-30-800) regarding illegal inducements by title companies and replace it with rules that provide specifics as to what things of value title companies can and cannot give to persons in a position to refer or influence the referral of title insurance business.
Reasons Supporting Proposal: During the 2008 legislative session, the legislature enacted RCW 48.29.210 prohibiting title insurance companies and title insurance agents from providing things of value to any person in a position to refer or influence the referral of title insurance business to the title company except as permitted by rules adopted by the commissioner. These proposed rules effectuate chapter 48.29 RCW.
Statutory Authority for Adoption: RCW 48.02.060, 48.29.005.
Statute Being Implemented: RCW 48.29.210.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Mike Kreidler, insurance commissioner, governmental.
Name of Agency Personnel Responsible for Drafting: Jim Tompkins, P.O. Box 40258, Olympia, WA 98504-0258, (360) 725-7036; Implementation and Enforcement: John Hamje, P.O. Box 40257, Olympia, WA 98504-0257, (360) 725-7262.
No small business economic impact statement has been prepared under chapter 19.85 RCW. Although proposed WAC 284-29-200 to 284-29-265 will affect many small producers within Washington state these proposed rules do not require a small business economic impact statement for the following reasons:
(A) For any activity that would be subject to penalty, except for record keeping, the penalty would be due to engaging in an act prohibited by law (because the commissioner had not expressly permitted the activity in these proposed sections); and
(B) Any additional cost involved in keeping records required by the new proposed regulations for limited number of activities permitted by the commissioner in the proposed WAC sections will constitute a "minor cost," as defined by RCW 19.85.020.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Kacy Scott, P.O. Box 40258, Olympia, WA 98504-0258, phone (360) 725-7041, fax (360) 586-3535, e-mail Kacys@oic.wa.gov.
December 3, 2008
(2) RCW 48.29.210 not only applies to title insurance producers or associates of producers, but to every person in position, directly or indirectly, to refer or influence the referral of title insurance business.
(3) No title company is required to give to any person any of the things of value that are permitted by WAC 284-29-200 through 284-29-265 and a person is not entitled to receive any of the permitted things of value from a title company.
(4) Adoption of WAC 284-29-200 through 284-29-265 must not be construed to mean that the commissioner encourages title companies to give anything of value to any person in a position to refer or influence the referral of title insurance business.
(5) Nothing contained in WAC 284-29-200 through 284-29-265 prohibits the payment by a title insurer or title insurance agent to a producer of a return on ownership interest in the title insurer or title insurance agent as set forth in RCW 48.29.213.
(6) Title companies must not enter into any agreement, arrangement, scheme, or understanding or in any other manner pursue any course of conduct, designed to avoid RCW 48.29.210 and WAC 284-29-200 through 284-29-265.
(1) "Advertising" or "advertisement" means a representation about any product, service, equipment, facility, or activity or any person who makes, distributes, sells, rents, leases, or otherwise makes available such a product, service, equipment, facility, or activity, when the representation:
(a) Is communicated to a person that, to any extent, by content or context, informs the recipient about such product, service, equipment, facility, or activity;
(b) Recognizes, honors, or otherwise promotes such a product, service, equipment, facility, or activity; or
(c) Invites, advises, recommends, or otherwise solicits a person to participate in, inquire about, purchase, lease, rent, or use such a product, service, equipment, facility, or activity.
(2) "Associates of producers" has the same meaning as set forth in RCW 48.29.010 (3)(f).
(3) "Bona fide employee of a title company" means an individual who devotes substantially all of his or her time to performing services on behalf of a title company and whose compensation for these services is in the form of salary or its equivalent by the title company.
(4) "Give" means to transfer to another person, or cause another person to receive, retain, use or otherwise benefit from a thing of value whether or not the title company receives compensation in return. It also means the transfer to a third person of anything of value that in any manner benefits a person in a position to refer or influence the referral of title insurance business.
(5) "Market rate" means the price at which a seller, under no obligation or duress to sell, is willing to accept and a buyer, under no obligation or duress to buy, is willing to pay in an arms-length transaction. The market rate is determined by comparing the items or services purchased or sold to similar items or services that have been recently purchased by others or sold to others, including others not in the title insurance business.
(6) "Person" has the meaning set forth in RCW 48.01.070.
(7) "Producers of title insurance business" or "producer" has the meaning set forth in RCW 48.29.010 (3)(e); this term includes associates of producers and any person in a position to refer or influence the referral of title business to the title company.
(8) "Representative of a title company" means any person acting directly or indirectly on behalf of the title company.
(9) "Restrictive covenants" means private agreements that restrict the use or occupancy of real property generally by specifying lot sizes, building lines, occupancy, architectural styles, and the use to which the property may be put. Restrictive covenants do not include matters such as easements and road maintenance agreements.
(10) "Self-promotional" means an advertisement or promotional function which is conducted by a single title company solely for the benefit of the title company or a promotional item intended for distribution by a single title company and only on behalf of the title company.
(11) "Thing of value" means anything that has a monetary value. It includes but is not limited to cash or its equivalent, tangible objects, services, use of facilities, monetary advances, extensions of lines of credit, creation of compensating balances, title company employee time, advertisements, discounts, salaries, commissions, services at special prices or rates, sales or rentals at special prices or rates, and any other form of consideration, reward or compensation.
(12) "Title company" means either a title insurance company authorized to conduct title insurance business in this state under chapter 48.05 RCW or a title insurance agent defined in RCW 48.17.010(15), or both. The term includes employees, representatives, and agents of title insurance companies and title insurance agents.
(13) "Trade association" means an association of persons, a majority of whom are producers or persons whose primary activity involves real property. Trade association does not include an association of persons, a majority of whom are title insurance companies and title insurance agents.
(a) The last deed appearing of record;
(b) Deeds of trust, mortgages, and real estate contracts which appear to be in full force and effect;
(c) A map of the property which may show the property's location or dimensions, or both;
(d) Applicable restrictive covenants;
(e) Tax information; and
(f) Property characteristics such as number of rooms, square footage and year built.
(2) A listing package must not include any other real property information such as market value information, demographics, or additions, addenda, or attachments which may be construed as conclusions reached by the title company regarding matters of marketable ownership or encumbrances.
(3) A generic cover letter printed on the standard letterhead of the title company may be attached to the listing package.
(a) The cover letter may include a brief statement identifying by name only, any of the six permitted items included in subsection (1) of this section that may be attached to the cover letter;
(b) The cover letter may contain a disclaimer as to conclusions of marketable ownership or encumbrances; and
(c) The content of the cover letter or listing package is strictly limited to the items listed in this section and must not include any advertising or marketing for the benefit of the recipient.
(4) A title company may give, without charge, to a producer a single copy of a document affecting title to a specific parcel of real property only if:
(a) The cost to the title company of giving the copy of the document, including but not limited to labor and materials, is ten dollars or less; and
(b) The document is not in any manner given to the producer in conjunction with or in association with the giving of other documents related to property in the general locale for which the single document is being given.
(5) A title company must not give a producer reports containing publicly recorded information, comparable sale information, appraisals, estimates, or income production potential, information kits or similar packages containing information about one or more parcels of real property, except as permitted by this section, without charging and actually receiving payment for the actual cost of the work performed and the material provided (for example, costs related to providing farm packages, labels, lot book reports, home books, and tax information).
(6) A title company may give, at no charge, to the proposed insured or insured, copies of any documents set forth as exceptions in a commitment or policy.
(7) If a title company owns or leases and maintains a complete set of tract indexes in a particular county in which the county government does not make copies of recorded documents available on the county's web site, then the title company may make copies of the recorded documents available at no charge to the general public on the title company's web site.
(a) The publication is an official publication of the trade association;
(b) The publication must be nonexclusive so that any title company has an equal opportunity to advertise in the publication;
(c) The title company must pay no more than the standard rate for the advertisement applicable to members of the trade association;
(d) The title company's advertisement must be solely self-promotional; and
(e) The payment for the advertisement must be included as an expenditure for the purposes of the limits in WAC 284-29-220(5).
(2) Except as provided in subsection (1) of this section, a title company must not directly, indirectly, by payment to a third-party or otherwise, use any means of communication or media to advertise on behalf of, for, or with a producer, including but not limited to:
(a) Advertising real property for sale or lease unless the property is owned by the title company;
(b) Advertising or promoting the listings of real property for sale by real estate licensees; or
(c) Advertising in connection with the promotion, sale, or encumbrance of real property.
(3) No advertisement may be placed in a publication that is published or distributed by or on behalf of a producer of title business, including but not limited to, web sites, flyers, postcards, for sale signs, flyer boxes, or any other means of communication or any other media.
(4) Title companies may pay for a self-promotional advertisement in the publications or broadcasts of the following persons:
(b) Telephone directories;
(c) Internet web sites, subject to the limits of subsection (3) of this section;
(d) Television stations;
(e) Radio stations; and
(f) Real estate licensees who do not represent buyers and sellers or who do not function as agents as defined in RCW 18.86.010(2) provided that the publication must be nonexclusive so that any title company has an equal opportunity to advertise in the publication.
(2) A title company may donate to, contribute to or otherwise sponsor a trade association event only if all of the following conditions are met:
(a) The event is a recognized association event that generally benefits all members and affiliated members of the association in an equal manner;
(b) The donation must not benefit a selected producer member of the association unless through a random process; and
(c) Solicitation for the donation must be made of all association members and affiliated members in an equal manner and amount.
(3) A title company may pay for its employees and a single guest of each employee to attend trade association events only if all of the following conditions are met:
(a) The title company pays a fee equal to fees paid by producer members of the association in the events;
(b) The title company employees and their guest(s) actually attend the event (except when attendance is prevented by an emergency); and
(c) The guest of the title company employee is not a producer (except where the guest is related to the title company employee by blood or marriage or their domestic partner).
(4) For purposes of this section, trade association events include, but are not limited to, conventions, award banquets, symposiums, educational seminars, breakfasts, lunches, dinners, receptions, cocktail parties, open houses, sporting activities and other similar activities.
(5) A title company may:
(a)(i) Donate to, contribute to, or otherwise sponsor a trade association event under subsection (2) of this section;
(ii) Advertise in a trade association publication under WAC 284-29-215(1); and
(iii) Sponsor a trade association educational seminar under WAC 284-29-235(3);
(b) Give a thing of value listed under (a) of this subsection to a trade association only if all of the following requirements are met:
(i) The thing of value is limited to one thousand dollars per event, advertisement, or sponsorship of an educational seminar;
(ii) The title company must not give a thing of value to all trade associations more than three times in a calendar year;
(iii) The title company must not combine any of these permitted expenditures into one expenditure; and
(iv) The title company must not accumulate or carry forward left over or unused expenditures from one of these permitted expenditures to a subsequent expenditure.
(6) If a title company owns or leases and maintains a complete set of tract indexes in more than one county:
(a) The limits set forth in subsection (5) of this section apply on a county by county basis for donations, contributions, sponsorships, payments for events, advertisements, or sponsorship of educational seminars of trade associations a majority of whose members are located in that county;
(b) A donation, contribution, sponsorship, payment for an event, advertisement, or sponsorship of an educational seminar to a statewide trade association shall constitute one of its expenditures for each and every county in which the title company is authorized to issue title insurance policies; and
(c) The title company must not combine or accumulate unused expenditures of these permitted expenditures from one county to another county nor to a statewide trade association.
(7) If a title company that is under common ownership makes a donation, contribution, sponsorship, payment for an event, advertisement, or sponsorship of an educational seminar to a statewide trade association, the expenditure shall constitute an expenditure as one of the expenditures for each and every one of the title companies that are under common control.
(a) An individual representing the title company is present during the business meal;
(b) There is a substantial and substantive title insurance business discussion directly before, during or after the business meal;
(c) No more than four individuals that are employed by or are independent contractors of the same producer are provided a business meal in a single day (spouses and guests of the producer must be included in the count for purposes of determining the four-person maximum); and
(d) The title company does not expend more than one hundred dollars per individual throughout any calendar year for all business meals.
(2) The business meals permitted in subsection (1) of this section must not include open houses of producers wherever located, including but not limited to, at the producers premises or facilities or homes of property for sale.
(3) For purposes of this section, "meals" includes, but is not limited to, breakfast, brunch, lunch, dinner, receptions, or cocktails and other beverages, whether the meals occur on or off the title company's premises.
(4) For purposes of determining the maximum permitted expenditure under subsection (1) of this section, all of the following requirements must be met:
(a) All costs associated with a meal must be included in the calculation of expenses. When calculating the cost of a meal, the title company must include all costs paid by the title company for travel, transportation, hotel, equipment or facility rental, food, cocktails and other beverages, refreshments, and registration or entry fees, except those fees incurred solely by the title company and that do not benefit the producer.
(b) Attendance at or an invitation to a meal must not be based on or be given as compensation for forwarding or directing title business to the title company.
(c) For accounting purposes, the expenditures by a title company for a meal may be prorated among all attendees, including the title company employees.
(5) A title company may host no more than two self-promotional functions per year, only if all of the following requirements are met:
(a) Any self-promotional function must be at the title company's owned or occupied facility at which the title company conducts its regular business. The self-promotional function must be nonexclusive and open to all producers.
(b) A title company must not spend more than fifteen dollars per guest reasonably expected to attend at any one self-promotional function.
(c) A title company must not combine permitted expenditures for two self-promotional functions into a single self-promotional function.
(d) A title company must not accumulate or carry forward left over or unused expenditures from one self-promotional function to a subsequent self-promotional function.
(e) If a title company owns or leases and maintains a complete set of tract indexes in more than one county, then the limits set forth in this subsection apply on a county by county basis.
(i) The self-promotional functions must be at the title company's owned or occupied facility at which the title company conducts its regular business in the county for which it owns or leases and maintains a complete set of tract indexes.
(ii) The title company must not combine permitted expenditures for a self-promotional function from one county to another county.
(6) The limits contained in subsections (1) and (5) of this section are separate limits and an expenditure made for an activity under one of these subsections is not applied to the limit under the other subsection.
(a) A title company must spend no more than ten dollars per person for refreshments at any one educational program.
(b) Any materials that the title company provides to attendees must be directly related to the topic of the seminar or are self-promotional advertising of the title company.
(2) A title company may provide a speaker at no charge for an educational program conducted or presented by other persons, only if the following conditions are met:
(a) The speaker is an employee of the title company;
(b) If a title insurance agent is providing the speaker, the speaker may be an employee of the title insurer for whom the title insurance agent has been properly appointed;
(c) The topic of the presentation by the employee is solely related to title insurance, escrow, or real property law; and
(d) Any materials that the speaker provides to attendees are directly related to the topic of the speaker or are self-promotional advertising of the title company of the employee.
(3) A title company may sponsor an educational seminar of a trade association subject to the limits in WAC 284-29-220.
(4) A title company may sponsor an educational program on topics other than title insurance, title to real property, and escrow only if:
(a) The educational program is open to all producers; and
(b) The attendees actually pay to attend the program the greater of:
(i) All expenses and costs associated with the delivery of the educational program by the title company; or
(ii) What the attendee would pay to attend a similar seminar sponsored by entities other than title companies on the open market.
The calculation by the title company of the expenses and costs associated with the delivery of the education program must include, but not be limited to, all travel, refreshments, speaker fees or wages of the speaker, facility rental, preparation of materials distributed at the program, parking, advertisement, and wages of arranging and planning for the program.
(1) The space is secured by a bona fide written lease or rental agreement;
(2) The rent paid for the workspace is consistent with the prevailing rent charged for similar space in the market area of the workspace;
(3) Renting the space is not contingent upon the volume of title company business and is paid only in cash and not by trade or barter;
(4) There is no sharing of employees unless the title company only pays for its reasonably proportionate share;
(5) There is no common usage of equipment between the title company and the producer unless the title company only pays for its proportionate share; and
(6) The workspace is occupied by a bona fide employee of the title company a minimum thirty hours per week, except for holidays and bona fide emergencies, and is open to the public during regular business hours. However, if for appropriate business reasons the title company ceases conducting business at the locale and there is a remaining term on the lease or rental agreement, the title company may continue to pay the rent until the expiration of the lease or rental agreement or the next renewal date of the lease or rental agreement, whichever is earlier.
(2) A title company may contribute to a charity only if:
(a) The contribution by the title company is made payable directly to the charity; and
(b) The solicitation for the contribution and the contribution are not, directly or indirectly, in exchange for the referral of title insurance business.
(3) Title company employees may attend and volunteer their time at events hosted by charities.
(2) A title company must not allow the use of any part of its premises (for example, its conference rooms or meeting rooms) to a producer without receiving a fair rental charge equal to the average rental for similar premises in the area.
(3) A title company may allow the use of a part of its premises (for example, its conference rooms or meeting rooms) for no charge to a meeting of a trade association for no more than four meetings in a calendar year.
(4) Title company employees may attend activities and business meetings of producers if all of the following standards are met:
(a) There is no cost to the employee or title company other than the employee's own entry fees, registration fees, meals, or other costs associated with the activity or business meeting;
(b) The fees paid by the title company are no greater than those charged to producer attendees; and
(c) If the title company pays a fee for an employee to attend the activity or business meeting, the title company employee must actually attend the activity or business meeting, unless an emergency prevents attendance.
(5) A title company may advance the recording fees for transactions for which the title company is either issuing the title insurance or conducting the escrow, or both, provided the title company is promptly reimbursed for the recording fees that it advanced.
(1) Except as permitted in WAC 284-29-200 through 284-29-255:
(a) A title company must not cosponsor, subsidize, or contribute fees, prizes, gifts, or give things of value for a promotional function or activity off the title company's premises whether the function is self-promotional or not.
(b) Examples of off-premises functions or activities include, but are not limited to:
(ii) Meals, including breakfasts, luncheons, dinners or cocktail parties;
(iii) Conventions, installation ceremonies, celebrations, hospitality rooms or similar functions;
(iv) Outings such as boat trips, fishing trips, motor vehicle rallies, sporting events of any kind, gambling trips, hunting trips, ski trips, shopping trips, golf tournaments, trips to or events at recreational or entertainment areas;
(v) Open house celebrations, or open houses at homes or property for sale;
(vi) Dances; or
(vii) Artistic performances.
(2) A title company must not sponsor, subsidize, supply prizes or labor, or otherwise give things of value for promotional activities of producers.
(3) A title company must not give or offer to give, either directly or indirectly, a compensating balance or deposit in a lending institution for the express or implied purpose of influencing the extension of credit by the lending institution to any producer.
(4) A title company must not disburse or offer to disburse on behalf of any person escrow funds held by the title company before the conditions of the escrow applicable to the disbursements are met.
(5) A title company must not advance, pay or offer to advance or pay money on behalf of any person into escrow to facilitate a closing unless:
(a) The property that is the subject of the escrow is owned by or being purchased by the title company;
(b) The payment is made in compliance with a court order requiring the title company to make the payment; or
(c) In settlement of a bona fide dispute for which the title company may be liable.
(6) A title company must not give, pay or offer to pay, either directly or indirectly, or make payment to a third party for the benefit of any producer for:
(a) The services of a title company employee or representative or an outside professional whose services are required by any producer to complete or structure a particular transaction;
(b) The salary or any part of compensation of an employee of a producer;
(c) The salary or any part of the salary, commission, or any other form of compensation to any employee of the title company who is at the same time actively engaged as a producer;
(d) A fee for making an inspection or appraisal of property, whether or not the fee bears a reasonable relationship to the services performed;
(e) Services required to be performed by any producer in his or her professional capacity;
(f) Any evidence of title or copy of the contents of a document which is not produced or issued by the title company;
(g) The rent for all or any part of any space occupied by any producer, except as provided in WAC 284-29-245;
(h) Money, prizes, or other things of value in any kind of a contest or promotional activity;
(i) Any advertisement published in the name of, for, or on behalf of any producer;
(j) A business form of any producer which is provided for the convenience and benefit of the producer, except a form regularly used in the conduct of the title company's business;
(k) Any earnest money purchase agreements or purchase and sale agreements;
(l) Flyer boxes and stands, for sale signs and posts, or services for the placement of any of them;
(m) Postcards, stamps, flyers, newsletters, folders, invitations, copying, cutting or services related to preparing any of these items;
(n) Car washes or coupons for car washes;
(o) Pictures of producers;
(p) Gift cards of in any amount;
(r) Discount certificates; or
(s) The cost of or reimbursement for advisory fees.
(7) A title company must not provide, or offer to provide, all or any part of the time or productive effort of any employee of the title company to any producer. For example, title company employees must not be used by or loaned out to a producer for the self-promotional interests of the producer except as part of the title company's day-to-day business with producers.
(8) A title company must not give or offer to give, pay for, or offer to pay for, furniture; office supplies, including but not limited to, file folders, telephones, computers or other equipment; or automobiles to any producer. A title company must not pay for, or offer to pay for, any portion of the cost of renting, leasing, operating, or maintaining any of these items.
(9) Delivery services between a title company and a producer must be performed by the title company's messenger service or employees and must consist only of delivering items directly related to the title company's title insurance or escrow business from the title company to a producer or from a producer to the title company.
(10) In accordance with its title insurance rates filed with the commissioner, a title company must not provide a title insurance commitment without actually receiving payment for the cancellation fee within the earlier of the following:
(a) One hundred eighty days of the first issuance of the commitment; or
(b) Sixty days of:
(i) The cancellation of the commitment;
(ii) When the title company reasonably should know that the commitment has been canceled; or
(iii) When the title company reasonably should know that the transaction for which the commitment was issued has been insured by another title company.
(11) A title company must not pay a producer member of its board of directors fees in excess of those paid to nonproducer directors.
(12) A title company must not enter into, agree to, or pay anything of value to a producer under any marketing agreement, access agreement, advertising agreement or any similar agreement.
(13) A title company must not make a donation to any charity in any manner that can reasonably be associated with a producer in exchange for the referral of title insurance business or obtaining customer service information from the title company.
(14) A title company must not pay any fee or consideration to any producer that is in any manner based in whole or in part on the number of transactions between the title company and the producer, regardless of the service being provided.
(15) A title company must not provide escrow, closing, or settlement services for a charge (independent of the rate charged for involved title insurance) that is less than the title company's actual cost either for:
(a) The cost of all parties to the escrow; or
(b) One party's proportionate share of the cost of the escrow.
(2) All records of a title company kept in order to meet the terms of WAC 284-29-200 through this section must be made available to the commissioner or the commissioner's representative during regular business hours.
(3) Failure of the title company to keep the records required by WAC 284-29-200 through this section is a violation of RCW 48.29.210.
The following section of the Washington Administrative Code is repealed:
|WAC 284-30-800||Unfair practices applicable to title insurers and their agents.|