HUD Letter Allows Percentage Plus Flat Fee Commission

A real estate broker’s commission may be determined using a percentage of the sales price, a flat fee, or a combination of both, according to a recent letter from HUD’s General Counsel Helen Kanovsky. The January 22 letter clarifies the distinction between using a formula to calculate a legitimate commission, as opposed to an unearned fee that violates RESPA. Under RESPA, a real estate broker cannot charge a fee if no, nominal, or duplicative work is done.

According to the letter from Ms. Kanovsky, the new HUD-1 simplifies the reporting of the broker’s commission because it is now reported in the 700-series as dollar amounts, rather than percentages. If, however, the amount in the 700-series is more than the commission in the listing agreement or buyer’s broker agreement, then HUD may review whether additional services were provided for the excess amount charged. As an example, a listing broker charging the buyer an administrative fee absent any contractual relationship between the listing broker and buyer may be evidence of a RESPA violation.

This HUD letter provides REALTORS® with some guidance after a federal district court in Alabama invalidated a $149 administrative brokerage commission last year in the case of Busby v. JRHBW Realty, Inc. (2009) 642 F.Supp.2d 1283. For more information on that case, see C.A.R.’s Realegal dated April 27, 2009.