Bill S.2307 188th (2013 - 2014)
An Act to regulate real estate appraisal management companies
The committee on Ways and Means, to whom was referred the House Bill to regulate real estate appraisal management companies (House, No. 3849); reports, recommending that the same ought to pass with an amendment striking out all after the enacting clause and inserting in place thereof the text of Senate document numbered 2307.
Section 92. (a) There is hereby established a board of real estate appraisers, which shall consist of 9 members to be appointed by the governor: 2 of whom shall be members of the general public appointed in accordance with section 9B; 1 of whom shall be a member of the banking industry; 1 of whom shall be a representative of an appraisal management company; 1 of whom shall be an employee in charge or controlling person of an appraisal management company; and 4 of whom shall be real estate appraisers. Each real estate appraiser who is a member of the board shall be licensed or certified pursuant to sections 173 to 195, inclusive, of chapter 112.
(b) The term of each appointed member shall be 3 years. Upon expiration of a member's term, such member of the board shall continue to hold office until the appointment and qualification of a successor. No person shall serve as a member of the board for more than 2 consecutive terms. The governor may remove a member for cause.
(c) Each member of the board shall be paid for expenses actually incurred in the performance of official duties.
(d) The board shall annually elect a chairperson from among its members. The director of professional licensure, with approval of the board, shall appoint an executive secretary to serve the board. The division of professional licensure shall employ such other clerical and technical assistants as may be necessary to discharge the official duties of the board.
(e) The board shall hold at least 6 meetings each year and may hold special meetings as required at a time and place determined by the board.
SECTION 2. Chapter 112 of the General Laws is hereby amended by adding the following 14 sections:-
Section 264. The following terms as used in sections 264 to 277, inclusive, shall have the following meanings, unless the context clearly requires otherwise:
“Analysis”, a study of real estate or real property other than estimating value.
“Applicant”, a person who applies to be registered as an appraisal management company in the commonwealth.
“Appraisal” or “real estate appraisal”, written analysis, opinion or conclusion prepared by a real estate appraiser relating to the nature, quality, value or utility of specified interests in, or aspects of, identified real estate; provided, that an “appraisal” may be classified as a valuation or an analysis, or both.
“Appraisal assignment”, an engagement for which an appraiser is employed or retained to act, or would be perceived by a third party or the public as acting, as a disinterested third party in rendering an unbiased analysis, opinion or conclusion relating to the nature, quality or utility of specified interests in, or aspects of, identified real estate.
“Appraisal management company”, any corporation, limited liability company, partnership, sole proprietorship, subsidiary, unit or other business entity that directly or indirectly performs the following appraisal management services: (i) administers a network of fee appraisers or employee appraisers to perform real estate appraisal assignments for clients; (ii) receives requests for real estate appraisal services from clients and, for a fee paid by the client, enters into an agreement with 1 or more independent appraisers to perform the real estate appraisal services contained in the request; or (iii) otherwise serves as a third-party broker of appraisal management services between clients and appraisers.
“Appraisal practice”, valuation services performed by an individual acting as an appraiser, including, but not limited to, appraisal, appraisal review or appraisal consulting.
“Appraisal report”, a written report of an appraisal.
“Appraisal review”, the act or process of developing and communicating an opinion about the quality of another appraiser’s work that was performed as part of an appraisal assignment related to the appraiser’s data collection, analysis, opinions, conclusions, opinion of value or compliance with the Uniform Standards of Professional Appraisal Practice; provided however, that “appraisal review” shall not include: (i) a general examination for grammatical, typographical or similar errors or (ii) a general examination for completeness including regulatory or client requirements as specified in an agreement process that does not communicate an opinion of value.
“Appraisal services'', the services required to perform an appraisal, including defining the scope of work, inspecting the property, reviewing necessary and appropriate public and private data sources including, but not limited to, multiple listing services, tax assessment records and public land records, developing and rendering an opinion of value and preparing and submitting the appraisal report.
“Board”, the board of registration of real estate appraisers established by section 92 of chapter 13.
“Controlling person”, (1) an officer or director of an appraisal management company or an individual who holds a 10 per cent or greater ownership interest in an appraisal management company; (2) an individual employed, appointed or authorized by an appraisal management company who has the authority to enter into a contractual relationship with clients for the performance of appraisal services and who has the authority to enter into agreements with independent appraisers for the completion of appraisals; or (3) an individual who possesses the power to direct or cause the direction of the management or policies of an appraisal management company.
“Covered transaction'', an extension of consumer credit that is or will be secured by the consumer's principal dwelling.
“Dwelling”, a residential structure that contains 1 to 4 units, whether or not that structure is attached to real property, an individual condominium unit, cooperative unit, mobile home or trailer, if it is used as the consumer’s principal residence.
“Employee in charge”, a designated employee of the appraisal management company, who is an appraiser certified in the commonwealth, with the responsibilities and obligations to the board as set forth in section 269.
“Fee Appraiser”, (i) a person who is a state-licensed or state-certified appraiser and receives a fee for performing an appraisal, but who is not an employee of the person engaging the appraiser; or (ii) an organization that, in the ordinary course of business, employs state-licensed or state-certified appraisers to perform appraisals, receives a fee for performing the appraisals and is not subject to section 1124 of the federal Financial Institutions Reform, Recovery and Enforcement Act of 1989 codified at 12 U.S.C. § 3353; provided however, that a “fee appraiser”, as defined in clause (i), shall be exempt from section 148B of chapter 149.
“Person”, an individual, sole proprietorship, partnership, limited liability company, limited partnership, corporation, association or other group engaged in joint business activities, however organized.
“Real estate”, an identified parcel or tract of land including improvements, if any.
“Real estate appraiser”, a person who develops and communicates real estate appraisals and who holds a current, valid certificate as a state-certified general real estate appraiser, state-certified residential real estate appraiser or state-licensed real estate appraiser pursuant to section 178.
“Real property”, 1 or more defined interests, benefits and rights inherent in the ownership of real estate.
“Registrant”, a real estate appraisal management company registered pursuant to sections 264 to 277, inclusive.
“Valuation”, an estimate of the value of real estate or real property.
“Valuation Services”, services pertaining to all aspects of property value.
Section 265. (a) No person shall directly or indirectly engage, or attempt to engage, in business as an appraisal management company, to directly or indirectly engage or attempt to perform appraisal management services or to advertise or hold itself out as engaging in or conducting business as an appraisal management company without first being registered by the board pursuant to sections 264 to 277, inclusive, regardless of the person’s use of the term “appraisal management company”, “mortgage technology company” or any other name.
(b) Sections 264 to 277, inclusive, shall not apply to:
(i) an agency of the federal government or any state or municipal government;
(ii) an appraisal management company that is a subsidiary, owned and controlled by a financial institution regulated by a federal financial institution regulatory agency, provided that the appraisal management company shall be in compliance with section 1124 of the federal Financial Institutions Reform, Recovery and Enforcement Act of 1989, codified at 12 U.S.C. § 3353, and any rules promulgated under that section;
(iii) a licensed real estate broker or salesperson performing activities in accordance with section 174; provided, however, that an exempt person shall not include a real estate broker or salesperson who receives compensation of any kind in connection with the referral or placement of an appraisal assignment; or
(iv) an appraisal management company exempt from licensure under rules and regulations adopted by the board.
(c) A fee appraiser shall not perform appraisal services for real property located in the commonwealth for an appraisal management company, which is not registered pursuant to sections 264 to 277, inclusive, unless the company is exempt from licensing as provided in this section.
Section 266. The board may adopt rules and regulations to implement sections 264 to 277, inclusive.
Section 267. (a) Applicants shall make a written application to the board on a form prescribed by the board, which shall set forth the applicant's qualifications for registration. The application shall identify each controlling person within the appraisal management company. The application shall be accompanied by the applicable fee, as determined annually by the secretary of administration and finance pursuant to section 3B of chapter 7 and any other information the board deems necessary pursuant to rules and regulations adopted by the board. Upon receipt of a completed application and fee the board shall determine whether each controlling person is of good moral character. If an applicant meets the board’s qualifications, the board shall then issue a certificate of registration to the applicant authorizing the applicant to act as a real estate appraisal management company in the commonwealth.
(b) An application for registration shall include the following certifications from the applicant:
(i) a certification that the applicant has a system and process in place to verify that a person being added to the appraiser panel of the appraisal management company for appraisal assignments on real property located in the commonwealth holds a license or certification in good standing in the commonwealth issued pursuant to this chapter;
(ii) a certification that the applicant has a system in place to review the work of all fee appraisers that are performing real estate appraisal services for the appraisal management company on a periodic basis to confirm that the real estate appraisal services are being conducted in accordance with the Uniform Standards of Professional Appraisal Practice; and
(iii) a certification that the applicant maintains a detailed record of each service request that it receives and the fee appraiser that performs the residential real estate appraisal services for the appraisal management company.
(c) A person who, directly or indirectly, owns more than 10 per cent of an appraisal management company seeking registration, or any officer, controlling person, employee in charge or managing principal of a appraisal management company seeking registration shall not be eligible for registration if (i) the individual had a license or certificate to act as an appraiser or to engage in any activity related to the transfer of real property refused, denied, canceled or revoked in the commonwealth or in any other state, whether on a temporary or permanent basis or (ii) the individual is not of good moral character as determined by the board.
(d) A registrant having a good faith belief that a real estate appraiser licensed in the commonwealth has violated applicable law or the Uniform Standards of Professional Appraisal Practice or has engaged in unethical conduct shall promptly file a complaint with the board.
Section 268. An appraisal management company applying to the board for registration shall designate 1 employee in charge who shall be the main contact for all communication between the board and the appraisal management company.
Section 269. In order to serve as the employee in charge for a registered appraisal management company, a designee shall, in addition to continually holding a valid license issued by the board as a state-certified appraiser:
(1) not have had a license to practice as an appraiser or to engage in any activity related to the transfer of real property refused, denied, canceled or revoked in the commonwealth or in any other state;
(2) be of good moral character;
(3) submit to a state background investigation; and
(4) shall be responsible for:
(i) management of the process of selecting appraisers for the performance of real estate appraisal services;
(ii) management of the process of conducting appraisal reviews; provided, that an employee of an appraisal management company or a contractor working on behalf of the company who has any involvement in the performance of an appraisal review, of completed appraisals of real property located in the commonwealth, shall be licensed or certified in the commonwealth and in good standing pursuant to sections 264 to 277, inclusive; and
(iii) maintaining required documentation as part of the board file.
Section 270. An appraisal management company shall file a form with the board indicating the appraisal management company's designation of a controlling person and employee in charge and the individual's acceptance of the responsibility. An appraisal management company shall notify the board of any change in the appraisal management company's controlling person or employee in charge and shall have 30 days from the date a vacancy occurs in either position to designate a temporary or permanent replacement and, in the event a temporary designation is made, 90 days to appoint a permanent replacement. An appraisal management company that does not comply with this section shall have the appraisal management company's registration suspended, pursuant to section 274, until the appraisal management company complies with this section. An individual operating an appraisal management company as a sole proprietorship shall be a certified general or certified residential appraiser and shall be considered the managing principal for purposes of sections 264 to 277, inclusive, unless another managing principal is designated.
Section 271. The following fees shall be determined annually by the secretary of administration and finance pursuant to section 3B of chapter 7 and shall be collected by the board: (a) application fee; (b) initial license fee; (c) annual renewal fee; (d) change in controlling person or employee in charge fee; and (e) late renewal fee. All licensing and application fees and civil administrative penalties collected pursuant to sections 264 to 277, inclusive, shall be deposited into the Division of Professional Licensure Trust Fund, established in section 35V of chapter 10.
Section 272. In addition to the filing fee, each applicant for registration shall post with the board and maintain a surety bond in an amount designated by the board. The bond shall: (i) be in the form prescribed by the board; and (ii) accrue to the commonwealth for the benefit of a claimant against the registrant to secure the faithful performance of the registrant’s obligations pursuant to sections 264 to 277, inclusive.
The aggregate liability of the surety shall not exceed the principal sum of the bond. A party having a claim against the registrant may bring suit directly on the surety bond or the board may bring suit on behalf of the party having a claim against the registrant. A deposit of cash or security may be accepted in lieu of the surety bond. A claim reducing the face amount of the bond shall be annually restored upon renewal of the registrant’s registration.
Section 273. (a) No employee, director, officer, managing principal or agent of an appraisal management company or any other third party acting as joint venture partner or independent contractor shall influence or attempt to influence the development, reporting, result or review of a real estate appraisal through coercion, extortion, collusion, compensation, inducement, intimidation, bribery or in any other manner including, but not limited to:
(1) withholding or threatening to withhold timely payment for a real estate appraisal report except in cases of breach of contract or substandard performance of services;
(2) withholding or threatening to withhold future business from a real estate appraiser or demoting or terminating or threatening to demote or terminate a real estate appraiser;
(3) expressly or impliedly promising future business, promotions or increased compensation for a real estate appraiser;
(4) conditioning the ordering of a real estate appraisal report or the payment of a real estate appraisal fee, salary, or bonus on the opinion, conclusion or valuation to be reached or on a preliminary estimate requested from a real estate appraiser;
(5) requesting that a real estate appraiser provide an estimated, predetermined or desired valuation in a real estate appraisal report or provide estimated values or comparable sales at any time before the appraiser's completion of the appraisal report;
(6) providing to a real estate appraiser an anticipated, estimated, encouraged or desired value for a subject property or a proposed or targeted amount to be loaned to the borrower; provided, however, a real estate appraiser shall be provided with a copy of the sales contract for purchase transactions, if available;
(7) providing to a real estate appraiser, or any entity or person related to the appraiser, stock or other financial or non-financial benefits;
(8) allowing the removal of a real estate appraiser from a list of qualified appraisers used by any entity without prior written notice stating the reason for removal to the appraiser; provide, that said notice shall include written evidence if the appraiser is removed from the list for illegal conduct, substandard performance or otherwise improper or unprofessional behavior or any violation of the Uniform Standards of Professional Appraisal Practice or licensing standards of the commonwealth;
(9) any other act or practice that impairs or attempts to impair a real estate appraiser's independence, objectivity or impartiality; or
(10) requesting or requiring a real estate appraiser to collect a fee from, or be compensated by, the borrower, homeowner, real estate agent, mortgage broker or any other third party in the provision of real estate appraisal services.
(b) No employee, director, officer, managing principal or agent of an appraisal management company or any other third party acting as joint venture partner or independent contractor shall:
(1) alter, modify or otherwise change a completed appraisal report submitted by a fee appraiser without the appraiser's written knowledge and consent;
(2) alter, modify or otherwise change a completed appraisal report submitted by a fee appraiser and shall transmit a true and exact copy to the client and any intended users;
(3) use an appraisal report submitted by a fee appraiser for any other transaction;
(4) require a fee appraiser to sign any indemnification agreement that would require the fee appraiser to defend and hold harmless the appraisal management company or any of its agents, employees or independent contractors for any liability, damage, losses or claims arising out of the services performed by the appraisal management company or its agents, employees or independent contractors and not the services performed by the fee appraiser;
(5) require a fee appraiser to provide the company with the appraiser's digital signature or seal;
(6) prohibit a fee appraiser from recording the fee that the fee appraiser was paid for the performance of an appraisal assignment within the body of the appraisal report;
(7) require a fee appraiser to accept an appraisal assignment if the fee appraiser, in the fee appraiser’s own independent professional judgment believes that: (i) the fee appraiser does not have the necessary expertise for the assignment or knowledge of the geographic area; or (ii) that the time frame does not allow the appraiser the ability to meet all of the fee appraiser’s relevant legal or professional obligations; provided thatthe fee appraiser has communicated such belief to the appraisal management company; or
(8) knowingly fail to compensate fee appraisers at a customary and reasonable rate for appraisal services in the market area of the property being appraised, consistent with section 129E of the federal Truth in Lending Act, 15 U.S.C. §1639e (i), and regulations promulgated thereunder.
(c) Nothing in this section shall be construed as prohibiting an appraisal management company from requesting that a fee appraiser:
(1) consider additional appropriate material property information;
(2) provide further detail, substantiation or explanation for the real estate appraiser's value conclusion; or
(3) correct errors in the real estate appraisal report.
(d) An appraisal management company shall not refuse to assign requests or orders for appraisals or reduce the number of assignments or otherwise penalize a fee appraiser who does not accept an assignment or order in accordance with clause (7) of subsection (b), except that nothing in this section shall require an appraisal management company to offer future appraisal assignments of a particular nature or type to a fee appraiser who previously indicated a lack of the necessary expertise or geographic knowledge for such assignments, except in the case where the fee appraiser subsequently demonstrates, to the satisfaction of the appraisal management company, that the fee appraiser has gained the required experience or geographic knowledge to competently complete the assignments.
Section 274. (a) The board, pursuant to sections 61 to 65C, inclusive, may, by order, deny, suspend, revoke or refuse to issue or renew a registration of an appraisal management company or may restrict or limit activities of a controlling person or employee in charge if the board determines that the controlling person or employee in charge has done any of the following:
(1) filed an application for registration that, as of its effective date or as of any date after filing, contained any statement that, in light of the circumstances under which it was made, is false or misleading with respect to any material fact;
(2) violated or failed to comply with section 265, 267, 268, 269, 270, 272, 273 or 275 or any rule or regulation adopted by the board;
(3) been convicted of any felony or, within the past 5 years, been convicted of any misdemeanor involving any activity related to the transfer of real property, including, but not limited to, mortgage lending or real estate appraisal or any offense involving breach of trust, moral turpitude or fraudulent or dishonest dealing;
(4) been permanently or temporarily enjoined by any court of competent jurisdiction from engaging in or continuing any conduct or practice involving any aspect of the real estate appraisal management business;
(5) been the subject of an order of the board or any other state appraiser regulatory agency denying, suspending or revoking the person's license as a real estate appraiser;
(6) acted as an appraisal management company while not properly licensed by the board;
(7) structured an appraisal assignment or a contract with a fee appraiser to evade sections 264 to 277, inclusive; or
(8) failed to pay the proper filing or renewal fee pursuant to sections 264 to 277,inclusive.
(b) The board may, pursuant to sections 61 to 65C, inclusive, by order, impose a civil penalty upon a controlling person or employee in charge for any violation of sections 264 to 277, inclusive. The civil penalty shall not exceed $10,000 for each violation.
(c) In addition to other powers set forth in sections 264 to 277, inclusive, upon finding that an action of a person is in violation of section 265, 267, 268, 269, 270, 272, 273 or 275, the board may order the person to cease from the prohibited action. If the person subject to the order fails to appeal the order of the board or the person appeals the order and the appeal is denied or dismissed and the person continues to engage in the prohibited action in violation of the board's order, the person shall be subject to a civil penalty of not more than $25,000 for each violation of the order. The penalties under this section shall be in addition to and not in lieu of any other law applicable to a registrant for the registrant's failure to comply with an order of the board.
(d) Unless otherwise provided, all actions and hearings arising under sections 264 to 277, inclusive, shall be governed by chapter 30A.
(e) If the board has reasonable grounds to believe that an appraisal management company has violated section 265, 267, 268, 269, 270, 272, 273 or 275 or that facts exist that would be the basis for an order against an appraisal management company, the board may at any time, either personally or by a person duly designated by the board, investigate or examine the books, accounts, records and files of any registrant or other person relating to the complaint or matter under investigation.
(f) The board may issue subpoenas requiring the attendance of persons and the production of papers and records before the board in any hearing, investigation, inquiry, or other proceeding conducted by the board. Upon the production of any papers, records or documents, the board may authorize true copies of the papers, records or documents to be substituted in the permanent record of the matter in which the papers, records or documents shall have been introduced in evidence.
Section 275. (a) The board shall maintain a list of all applicants for registration pursuant to sections 264 to 277, inclusive, which shall include for each applicant, the date of application, the name and primary business location of the applicant and whether the registration was granted or refused.
(b) The board shall maintain a current roster, which shall list the names and places of business of all registered appraisal management companies and list the appraisal management companies' respective officers and directors. The rosters shall: (i) be kept on file in the office of the board; (ii) contain information regarding all orders or other action taken against each company, its officers and other persons; and (iii) be open to public inspection.
(c) Every registered appraisal management company shall maintain the records related to services provided by the appraisal management company as prescribed in regulations adopted by the board. All records shall be preserved for 5 years unless the board, by regulation, prescribes otherwise for particular types of records.
(d) If the information contained in any document filed with the board is or becomes inaccurate or incomplete in any material respect, the appraisal management company shall promptly file a correcting amendment to the information contained in the document.
Section 276. The board may appear in its own name in superior court in actions for injunctive relief to prevent any person from violating section 265, 267, 268, 269, 270, 272, 273 or 275 or regulations adopted by the board. The superior court shall have the power to grant an injunction regardless of whether criminal prosecution has been or may be instituted as a result of the violations or whether the person is the holder of a registration issued by the board pursuant to sections 264 to 277, inclusive.
Section 277. (a) The board may conduct investigations and examinations, pursuant to sections 61 to 65C, inclusive, for the purposes of:
(1) initial registration, registration renewal, registration suspension, registration conditioning, registration revocation or termination or general or specific inquiry or investigation to determine compliance with sections 265, 267, 268, 269, 270, 272, 273, 274 and 275; provided, that the board may access, receive and use any books, accounts, records, files, documents, information or evidence including, but not limited to: (i) criminal, civil and administrative history information, including non-conviction data as specified in applicable general laws; and (ii) any other documents, information or evidence the board deems relevant to the inquiry or investigation regardless of the location, possession, control or custody of the documents, information or evidence; and
(2) determining whether violations or complaints arising under sections 265, 267, 268, 269, 270, 272, 273, 274 and 275 are valid.
(b) If an applicant, registrant or managing principal’s criminal history record check reveals 1 or more convictions, the conviction shall not automatically bar registration; if the conviction is unrelated to the transfer of real property. The board shall consider the following factors regarding the conviction: (i) the level of seriousness of the crime; (ii) the date of the crime; (iii) the age of the person at the time of the conviction; (iv) the circumstances surrounding the commission of the crime, if known; (v) the nexus between the criminal conduct of the person and the job duties of the position to be filled; and (vi) the person's prison, jail, probation, parole, rehabilitation and employment records since the date the crime was committed.