1. HR 3221, which provides an exemption from overlaying appraisals for high-risk loans if they are under $250,000 and kept in the bank’s portfolio for at least three years. 
2. S 2155, which provides an allowance from appraisal requirements with loans held in portfolio in rural areas if lenders are unsuccessful in placing an appraisal assignment with appraisers on their approved appraiser list. 
3. HR 3561, which permits appraisers to use information based solely on data from a property inspection performed by a third party for VA loans. 

• Clarifying the intent of HR 3561 to ensure property inspectors are to be affiliated with appraisers. The VA confirms this is the intent of the bill, but it’s still undefined. 
• Reforming the overall appraisal regulatory structure instead of establishing exemptions. Doing so would alleviate appraisal shortage concerns by making the valuation profession more efficient and attractive to prospective appraisers while mitigating a buildup of risk in the financial system.

Court Grants the LREAB Motion to Stay FTC Administrative Proceedings

The Federal Trade Commission in May 2017 filed an administrative complaint against the Louisiana Real Estate Appraisers Board alleging it unreasonably restrained price competition for appraisal services within the state, contrary to federal antitrust law. 

 

This past April, the FTC denied a motion by the LREAB to dismiss the complaint, and instead summarily dismissed two of the LREAB’s affirmative defenses offered in its response to the complaint, namely: 

On April 19, the LREAB filed in the U.S. Court of Appeals for the Fifth Circuit a petition for review of the FTC’s action to dismiss its defenses. The FTC on June 6 denied the LREAB’s motion for stay proceedings pending appellate review. However, on July 17, the appeals court granted the LREAB’s motion for stay of further action by the FTC. The administrative proceedings before the FTC are now stayed until further order of the appeals court. The LREAB filed its initial brief with the appeals court on July 5 and requested oral argument. The FTC now has 30 days to file its brief with the appeals court. 

 

Read more about the FTC’s administrative complaint. 

 

 

Appraisal Institute Weighs in on Modernization of GSE Processes, Forms

The Appraisal Institute attended and hosted several meetings this spring concerning the government-sponsored enterprises’ appraisal policies. Fannie Mae and Freddie Mac separately are making changes to their appraisal policies and procedures while working together on changes to their standard appraisal forms, as mandated by the Federal Housing Finance Agency. 

 

Representatives from Fannie Mae attended the AI Government Relations Committee meeting in May in Washington to gather information on current issues affecting appraisers and to find out what future issues may lie ahead. Following the meeting, the AI GRC prepared a written response to their questions. 

 

Concurrent and separate from that meeting, the Seattle and the North Texas AI chapters hosted listening sessions with Freddie Mac officials to discuss the modernizing processes at the GSE. AI’s Greater Tennessee Chapter will host a similar listening session on Aug. 1.

 

Separate from those meetings, AI officers and AI GRC members met with and talked to officials from both GSEs to discuss updates to appraisal forms, which is a joint undertaking  — unlike those for processes and procedure policies. AI offered suggestions on a range of issues, including ways to revise the forms so they focus less on rules and process and more on appraiser analysis and how to reduce appraiser and lender liabilities. 

 

Both projects — which could take several years to complete and implement — have the potential to significantly impact the valuation profession and those who use appraisal services. 

 

 

The Appraisal Subcommittee Denies Bank’s Request for Appraisal Waiver

The Appraisal Subcommittee unanimously rejected a temporary waiver request from TriStar Bank of Dickson, Tennessee, during a special meeting April 23 in Washington. The Appraisal Institute led industry efforts opposing the bank’s request for a waiver of certification requirements, which would have allowed appraisals to be completed by non-certified appraisers. 

 

The ASC board heard a summary of comments received during a 30-day public comment request published in the Federal Register and gave representatives from TriStar Bank the opportunity to address the board. 

 

During deliberations, several ASC board members questioned the supporting documentation provided by the bank, including information on purported increases in turnaround times. The board did not see the nominal increased turnaround time as representing a scarcity of appraisers, especially considering comments submitted by local appraisers who had worked for the bank. 

 

The ASC board offered to provide TriStar Bank with the names of local appraisers who expressed interest in working with the bank during the open comment period as the bank attempts to resolve ongoing operational issues. 

 

AI expects the ASC to receive additional temporary waiver requests and is prepared to respond to them.  

 

 

AI Asks CFPB to Review TILA/RESPA 'Integrated Disclosures' TRID Rule

The Appraisal Institute in a June 19 letter to the Consumer Financial Protection Bureau encouraged a review of the TILA/RESPA “Integrated Disclosures” TRID Rule. The CFPB had requested comment on whether it should amend any rules issued since its creation or issue rules under new rulemaking authority provided by the Dodd-Frank Act. 

 

TRID requires the “estimated value of property” to be included by the homebuyer to the lender for a loan application to be considered complete. Once completed, the lender has three business days to provide the homebuyer the loan estimate document. AI raised the concern that the appraisal fee is considered a charge the homebuyer cannot shop for, subject to a zero-tolerance policy imposed in 2015. Previously, appraisal charges had a 10 percent tolerance. 

 

This rule forces appraisal service providers to provide estimates on assignments “sight-unseen” and without understanding the complexity of the assignment. Often, appraisers receive an assignment without knowing the complexity of a property, so the proposed fee can be much lower than the work required of the assignment — and appraisers have no recourse. 

 

Giving appraisers the ability to quote a fee or submit an invoice based on the complexity of a specific assignment without incurring penalties for the lender or the consumer would benefit all parties involved. 

 

AI also requested the CFPB review the Interim Final Rule amending Regulation Z of the Truth in Lending Act, which addresses appraisal independence. The rule, published by the Federal Reserve in 2010 and carried forward by the CFPB, continues to harm consumers and the integrity of the appraisal process because it contains two conflicting presumptions of compliance, creating two inconsistent standards in the marketplace. 

 

One presumption recognizes independent studies or agency fee schedules that exclude assignments involving known appraisal management companies. The other presumption explicitly allows it. The inconsistent standards result in wide divergence from customary and reasonable fees. Appraisers, users of appraisal services and consumers would all benefit from a consistent federal standard that is unswerving in the spirit and intent of appraisal independence.

Colorado Enacts Waiver Valuation Law

Colorado Gov. John Hickenlooper on May 24 signed SB 18-1349, legislation addressing the use of waiver valuations by the state Department of Transportation. 

 

The law clarifies that a waiver valuation is not an appraisal for purposes of the state’s appraiser licensing laws and regulations. The law also amends the definition of real estate appraiser to clarify that an individual, including an individual who is a licensed or certified real estate appraiser, is not an appraiser for purposes of state laws regulating appraisers when an individual performs a waiver valuation. The law allows a state licensed appraiser to perform a waiver valuation that does not comply with the Uniform Standards of Professional Appraisal Practice.

 

Additionally, SB 18-1349 reconciles Colorado law governing waiver valuations with federal laws and regulations by permitting the state DOT to utilize waiver valuations in lieu of appraisals when the property being valued is $25,000 or less. 

 

 

Court Finds Tax Appeal Attorneys Not Engaged in Appraisal Practice

The Circuit Court of Cook County, Illinois (Chancery Division) on June 20 ruled that attorneys who referenced comparable property valuations and market values based on an income approach as part of tax appeal proceedings were simply engaged in the traditional practice of law and not in appraisal practice.

 

The case, Illinois State Bar Association vs. Illinois Department of Financial and Professional Regulation, was filed in July 2017 after two Illinois attorneys were accused by the IDFPR of engaging in unlicensed appraisal practice after they submitted comparable property valuations, income approach information and market value opinions as part of two tax assessment appeals in DuPage County and McHenry County. 

 

ISBA filed a complaint seeking a declaration that the IDFPR lacked authority to prosecute, discipline or sanction lawyers for engaging in the practice of law for advocating on behalf of clients in real estate tax assessment proceedings. The case also sought to enjoin the IDFPR from initiating, maintaining or threatening prosecution of attorneys for engaging in that activity.

 

The main question before the court was whether an attorney representing a client in a tax proceeding violated the state’s Appraisal Act and functioned as an unlicensed appraiser when providing an analysis of comparable property valuations or developing an opinion of market value utilizing the income approach in a legal brief supporting a tax appeal. 

 

ISBA issued a statement when it filed suit noting, “Arguments based on property valuation are common in many legal fields and have long been typical of real estate tax assessment practice. The ISBA believes that making such arguments on behalf of clients clearly constitutes the practice of law, does not entail the submission of an appraisal, and is well beyond the authority of the IDFPR to regulate.”

 

IDFPR filed a motion to dismiss in September 2017, arguing that the Appraisal Act “forbids any unlicensed person, even an attorney, who does not fall under a statutory exemption from engaging in the conduct that led to the pending administrative enforcement proceedings. Such conduct constitutes the provision of an appraisal, for which a state license or exemption is required.”

 

In its order granting summary judgement to the ISBA, the court stated, “There is nothing in the text and structure of the Appraisal Act that suggests that the General Assembly intended its prohibition on unlicensed appraisers to extend to what is the traditional practice of law in the property tax context.” The court further noted, “An attorney’s reference to comparable valuations in a property tax proceeding constitutes the practice of law, which is regulated exclusively by the Illinois Supreme Court.”

 

The court found, “The comparison of properties or an income approach valuation presented by a licensed Illinois attorney on behalf of a client in real estate tax assessment proceedings does not entail the development or submission of an appraisal or constitute the unlicensed practice of real estate appraisal.” 

 

The IDFPR was permanently enjoined and prohibited from taking further administrative action against attorneys submitting comparable properties and market value opinions based on the income approach. 

 

The case is 2017 CH 09418. Read the court ruling.

 

 

Illinois Changes AMC Law, Allows Multistate Appraiser Licensing System

Illinois Gov. Bruce Rauner on July 13 signed Public Act 100-0604 (enacted as SB 2617), legislation that amends Appraisal Management Company Registration Act requirements for AMC registration and oversight. It also authorizes the Illinois Department of Financial and Professional Regulation to participate in a multistate appraiser license and renewal system. 

 

The law, which takes immediate effect, applies to any entity providing appraisal management services (as defined by law), regardless of its size or whether it engages appraisers as independent contractors or employees. However, it only applies to AMCs engaging appraisers for mortgage lending transactions involving a consumer’s principal dwelling, which corrects a provision enacted in 2011 that could have required some commercial appraisal firms operating in Illinois to register as an AMC and require oversight as such. 

 

Residential appraisal firms operating in the state and are owned by at least one Illinois state-certified appraiser are specifically excluded from any requirements applicable to AMCs. 

 

Several of the AMC provisions will bring the state into compliance with the federal minimum requirements for regulating AMCs as outlined by the federal bank regulatory agencies in 2015. Among those regulations is the authorization to collect National Registry fees from AMCs operating in Illinois. 

 

Also noteworthy are several interrelated provisions that authorize the IDFPR to designate an online, multistate platform within the Nationwide Multistate Licensing System for processing new and renewed appraiser licenses. The state already participates in the NMLS for the licensing of individuals and entities involved in residential mortgage lending, consumer lending, payday lending and seller financing. However, no online multistate platform for the appraiser licensing currently exists. 

 

 

Michigan Law Imposes Time Limitation on Disciplinary Actions 

Michigan Gov. Rick Snyder on May 23 signed HB 5591, legislation that requires administrative complaints against appraisers to be filed within 18 months of the date of the alleged violation, the date that the appraisal was delivered to the client or the date that the appraisal or appraisal review was delivered to the opposing party if the alleged violation occurred as part of expert witness testimony. 

 

 

Minnesota Reconstitutes Real Estate Advisory Board

Minnesota Gov. Mark Dayton on May 20 signed Senate File 2991, legislation that reconstitutes the state’s Real Estate Advisory Board, which had been sunset in 2014. 

 

The board will consist of seven members — four appraisers, one appraisal management company representative, one public member and the commissioner of the Department of Commerce. Appointments to the board are due by Sept. 1, and the first meeting is to take place no later than Nov. 1. 

 

The duties of the new board will be to “advise, provide input, and suggest best practices to the Department of Commerce regarding licensing, public disciplinary matters, continuing education and industry-related trends.”

 

The Department of Commerce commissioner must provide to the board a quarterly report that includes a list of the appraisal courses and seminars that the department did not approve for continuing education credit, and the reason for the denial. The quarterly report must also include a summary of public disciplinary actions taken by the commissioner. 

 

Sen. Bill Weber, an appraiser, was the bill’s lead sponsor in the Senate while Rep. Tim O’Driscoll, a real estate sales professional and educator, was the lead sponsor of a companion bill in the House. 

 

 

Missouri Appraiser Commission Issues BPO Guidance; Banks Respond

The Missouri Real Estate Appraisers Commission in April sent letters to the state’s financial institutions reminding them of “the legal authority related to the use of broker price opinions by lending institutions and appraisal management companies. The letters addressed concerns that BPOs were being used outside the scope of authority.  

 

In its letters, the MREAC outlined the penalties associated with “offering to engage in or engaging in the performance of any acts or practices for which a certificate or license is required” by the Missouri appraiser licensing law. 

 

Missouri law defines an appraisal as “an objective analysis, evaluation, opinion or conclusion relating to the nature, quality, value or utility of specified interests in, or aspects of, identified real estate.” They can only be performed by state-licensed or state-certified appraisers.

 

A BPO is defined as “an opinion of value, prepared by a real estate licensee for a fee, that includes, but is not limited to, analysis of competing properties, comparable sold properties, recommended repairs and costs or suggested marketing techniques.” Missouri does not specify the permitted uses of BPOs, and only says that a real estate sales professional is not subject to the state appraiser licensing law when performing a BPO. 

 

The Missouri Bankers Association responded May 22 with letters to the Missouri Attorney General and the Director of Insurance, Financial Institutions and Professional Regulation, expressing concern with the “apparent regulatory overreach of the MREAC in issuing this letter to our member banks.”

 

The MBA stated that it had “not been able to determine the policy or law supporting the issuance of this letter” and it believes that “MREAC simply lacks jurisdiction to issue an apparent ‘supervisory letter’ to Missouri banks.” The letter stated that Missouri banks are supervised by the state Division of Finance and the federal bank regulatory agencies, and MBA noted, “If the MREAC has legitimate concerns regarding banking practices, these concerns should have been addressed to the appropriate bank regulatory agency and any concerns with practices of real estate sales persons or brokers should have been addressed to the Missouri Real Estate Commission.”

 

A stakeholder discussion regarding these developments was held during the MREAC’s regular meeting on June 26. 

 

 

Nevada Court Rules That BPOs Can Be Used to Establish Value

The Nevada Court of Appeals on April 30 ruled in an unpublished opinion that a broker price opinion can be used to establish the value of real property in divorce proceedings. 

 

The plaintiff in the case had argued that the district court erred in determining the value of the marital residence because it relied on a valuation provided by someone who was not a licensed or certified real estate appraiser. 

 

The appeals court found that the district court did not abuse its discretion in relying on the estimated value of the home provided by the BPO. In its decision, the appeals court noted, "…our research has revealed no authority to support the assertion that a licensed certified appraisal, rather than a BPO, is required to establish the value of a marital residence in a divorce proceeding.”

 

 

Ohio Enacts Law Establishing AMC Oversight and Certification

Ohio Gov. John Kasich on June 14 signed substitute House Bill 213, legislation that establishes the state’s appraisal management company licensing and oversight program and makes minor changes to the state’s existing appraiser licensing and certification law.

 

AMCs currently operating in Ohio will not be required to register and otherwise comply with the law until six months after its June 14 effective date. That six-month period gives the Ohio Real Estate Appraiser Board time to promulgate several rules necessary to implement the program, including one on “presumptions of compliance with regard to customary and reasonable fees” that AMCs are required to pay to appraisers.

 

A provision of note: the law requires appraisers working for AMCs to include within the body of their appraisal report the license, certificate or registration number of the AMC that engaged their services. Additionally, appraisers working for AMCs are required to include within the body of the appraisal report the “actual fees paid to the appraiser.”

 

The law is mostly consistent with the federal Minimum Requirements for Appraisal Management Companies as promulgated by the federal bank regulatory agencies, as well as the Appraisal Institute’s Appraisal Management Company Model Registration Act. However, the law is applicable to all entities providing residential appraisal management services in Ohio and does not exempt entities with fewer than 15 independent in-state contractor appraisers on their appraiser panel.

 

Ohio is the 48th state to enact an AMC law. Similar laws are pending in New York and Massachusetts. Washington, D.C., and four U.S. territories opted out of adopting AMC laws.

 

 

Pennsylvania Passes Law Allowing Limited Broker Price Opinions

Pennsylvania Gov. Tom Wolf on June 29 signed HB 863, legislation that allows the state’s real estate brokers, associate brokers and salespeople to provide broker price opinions. The law takes effect Aug. 28 and places significant restrictions on brokers, associate brokers and salespeople and limits the situations under which they may perform BPOs.

 

The law defines a BPO as “an estimate … that details the probable selling price of a particular parcel of real property and provides a varying level of detail about the property’s condition, market and neighborhood, and information on comparable sales.”

 

Previously, BPOs were not recognized under Pennsylvania law, and the preparation of comparative market analyses was limited to helping consumers determine an asking/offering price for real property or to secure a listing agreement with a seller. 

 

Under HB 863, brokers, associate brokers and salespeople are limited to performing BPOs for financial institutions in conjunction with properties owned by the institutions after unsuccessful foreclosure auctions, modifications of equity credit lines, short sales and portfolio evaluations. More importantly, brokers, associate brokers and salespeople are explicitly prohibited from preparing BPOs for use in mortgage loan originations, eminent domain, tax appeals, bankruptcy or insolvency proceedings, divorce and equitable distribution, litigation and estate settlement. 

 

Brokers, associate brokers and salespeople must obtain education on the preparation of BPOs in order to perform them, and must have completed at least three hours of continuing education on BPO topics during the current or preceding two-year license period. Additionally, salespeople must have been licensed for at least three years prior to preparing BPOs and each BPO must be co-signed by their broker or associate broker. The law also outlines the minimum contents of a BPO and specifies that compensation due salespeople for a BPO be paid only to their affiliated broker. 

 

The bill’s lead sponsor was Rep. Greg Rothman, MAI, a Pennsylvania certified general appraiser and associate broker. The bill is the result of several years of negotiations on behalf of all stakeholders, including the Coalition of Pennsylvania Real Estate Appraisers, an entity founded and led by representatives of the state’s four Appraisal Institute chapters. 

 

Prior to the law taking effect, the Pennsylvania State Real Estate Commission must enact rules detailing the qualifying and continuing education requirements for brokers, associate brokers and salespeople before they can provide BPO services.

 

 

Tennessee Publishes Q&A on Real Estate Evaluations

The Tennessee Department of Commerce & Insurance, which includes the state’s Real Estate Appraiser Commission, published on its website April 17 a Q&A focused on real estate evaluations performed by state-licensed and state-certified appraisers.  

 

The publication clarifies that evaluations performed by licensed and certified appraisers in Tennessee are not required to comply with the Uniform Standards of Professional Appraisal Practice, and that an appraiser performing an evaluation is permitted to reference their credentials, including a state appraiser license or certification number and appraisal-related professional designations. 

 

An explanation of what constitutes an evaluation and the situations in which they may legally be performed by appraisers licensed or certified in Tennessee also is addressed, noting that evaluations performed by appraisers do not fall within the regulatory purview of either the TDCI or the Tennessee Real Estate Appraiser Commission and they must include a disclaimer stating, “This is not an appraisal.” 

 

Tennessee law allows state-licensed or state-certified appraisers to perform an evaluation for federally regulated financial institutions when a USPAP-compliant appraisal is not required by federal law. 

 

Read the Tennessee Department of Commerce & Insurance Q&A.

 

 

Several States Update Existing AMC Laws

During the 2018 legislative session, several states updated their existing laws regarding oversight and regulation of appraisal management companies. In most cases, new laws were enacted to bring the state’s AMC regulatory program into compliance with the federal minimum requirements. 

 

Colorado

SB 18-210 updates the state’s AMC registration and oversight law so it’s consistent with federal minimum requirements. 

 

Indiana 

SB 351 clarifies AMC payment requirements.  

HB 1277 enacts contract requirements for AMCs and appraisers.  

 

Maryland

HB 64 changes the time in which an appraiser must be paid by an AMC from 60 days to 45. 

LB 17 updates the state’s AMC registration and oversight law so it’s consistent with federal minimum requirements. 

 

South Carolina

SB 877 allows an AMC operating in the state to provide a surety bond rather than detailed financial information as part of the registration process. 

 

Utah 

HB 243 updates the state’s AMC registration and oversight law so it’s consistent with federal minimum requirements. 

 

Virginia

HB 1506 and SB 979 update the state’s AMC registration and oversight law so it’s consistent with federal minimum requirements. 

 

 

Multiple States Have Pending Legislation, Regulations Affecting Valuation Profession

The Appraisal Institute is monitoring 12 pieces of legislation or regulations in eight states that would have affect the valuation profession. The items include:

 

Alaska 

SB 155 establishes a comprehensive appraisal management company oversight and registration program. 

 

California

SB 70 permits an appraiser to prepare a restricted appraisal report with multiple intended users under certain circumstances

 

District of Columbia 

LB 810 enacts a comprehensive appraisal management company oversight and registration program. 

 

Florida

The state’s Real Estate Appraisal Board published a Notice of Development of Rulemaking to implement a 2017 law that allows appraisers to perform evaluations. A rulemaking workshop will be held Aug. 6. 

 

Illinois

HB 5502 eliminates the requirement for trainees to pass an exam; allows trainees to renew their credential an unlimited number of times; add investigative staff to the state appraiser regulatory agency.

 

Massachusetts

H 1975 clarifies that only the client and the intended user of an appraisal have standing to civilly sue an appraiser or to file a complaint with the state appraiser regulatory agency. 

 

H 2000 establishes a statute of limitations on disciplinary actions against appraisers of five years after the date of the appraisal report, or two years from the date of final disposition of a judicial proceeding in which an appraiser provided testimony related to the appraisal assignment. 

 

H 4566 establishes a comprehensive AMC registration and oversight program.

 

S 2246 makes it mandatory for appraisers to be licensed if they’re providing an opinion of value for real estate in the commonwealth.

 

New York

AB 10831 establishes a comprehensive AMC registration and oversight program. 

 

Texas

The Texas Appraiser Licensing and Certification Board issued a proposed rule that would permit Texas licensed and certified appraisers to perform non-USPAP compliant evaluations for commercial real estate transactions with a value less than $500,000. The Appraisal Institute on June 11 submitted a comment letter in support of this proposal. 

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