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sshrivastava

Commisison Rebates after Settlement -- legal or not?

sshrivastava
17 years ago

I will be licensed as a realtor here in Arizona next month, and have observed companies such as iNest and some local brokerages promising a commission rebate that comes in the form of a check 10-15 days after COE -- others do it as a credit at COE. I have talked with several brokers in the area, some of whom say it can't be done while others say yes, it can be done, but they won't tell me how they do it.

Basically what I've heard bounces between variations of the following:

  • You can cut a rebate check after settlement but must disclose such payment on the HUD-1 as a POC, or "paid outside of closing" amount going to the buyer.
  • You can credit 3-6% of the purchase price of the home to the buyer at COE, but if that credit exceeds the closing costs and prepaids, the buyer cannot get the leftover cash.
  • In conflict with the above was an agent who told me yes, the buyer can get any credit above and beyond closing costs/prepaids in cash but such a "cash at close" situation would have to be approved by the lender and obviously disclosed on the HUD-1.
  • Yet another version is that nothing has to be disclosed because what the agent does with his commission after the fact is his business, and if he decides to "give" a portion to the buyer as a fee for the buyer referring him/herself, that's not the lender's concern. According to him, paying a referral fee to the principal in the transaction for the principal referring him/herself is perfectly legal and the "no referral fees paid to non-licensed individuals" rule does not apply if you are paying the referral fee to a party in the transaction.
  • In the event a check CAN be cut outside of closing, does the agent have to file a 1099 for the client, or is the rebate considered a reduction in the house price and not actual additional "income" for the buyer? If I rebate after closing but don't file a 1099, how do I deduct the rebated portion so that I'm not taxed on the rebated portion?

As you can see, this is a complicated issue and I cannot find anything in the Arizona statutes specifically allowing or forbidding rebates outside of closing.

I've heard all the arguments and gotten many mixed messages -- the fact is that I want to rebate a significant portion of my commission to my buyers and want to know how to legally do it so the buyer gets the maximum benefit. Can I just cut them a check outside of closing, and if so, does it have to be declared on the HUD-1? If I can only do a rebate AT CLOSE and not after, how is a rebate handled if it exceeds closing costs and prepaids?

Any help would be appreciated. I'm getting stonewalled by old guard brokers and would love some advice from someone who is actually doing this or knows the answer. I sent an email to the ADRE with this question, but I don't know if I'll ever get a response.

I'm not looking to start a debate on commission rebates, just a way to help out my buyers without landing myself in a pot of hot water. Brokers have been no help to me...

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