The buzz is in the air with more questions than answers.
FinCEN published its Final Anti-Money Laundering Regulations for Residential Real Estate Transfers on August 28, 2024 (“Final Rule”), throwing the entire real estate industry into a state of high anxiety. What does it all mean? How do we meet its requirements? Will the expense of compliance be a financial drain — or even put us out of business? Title agents — who most often also fill the role of settlement or closing agents and would be the first elected reporter under the Final Rule — have been asking themselves these questions. While law firms and industry associations, as well as news outlets, have discussed the black letter text requirements set out in the 120-page Final Rule, no one knows exactly how this is going to play out. Of course, our biggest fear is always the great and looming unknown.
So, what can we say and do to allay those fears? First of all, the Final Rule does not become effective until December 1, 2025. This gives the industry time to become prepared and adapt to the new requirements. Secondly, ALTA has stated in its Industry News publication of August 29, 2024, that it “will develop and provide several education and training opportunities to prepare the industry for the rule’s requirements.”
Moving forward to operationalize the Final Rule, FinCEN released the unpublished version of its draft Real Estate Report on November 12, 2024 with the formal published version to follow; thereafter the collection form is open for a 60 day comment period. Additionally, FinCEN agreed to provide FAQs as it goes through implementation. If saying “help will be on the way” doesn’t quite do it for you, then think about the things that you can do now — including strategic planning — to take control, empower, educate and prepare yourself.
What kind of strategic planning are we talking about? Here are a few ideas:
Consider setting up a workflow to help you identify reportable transactions and direct the information, documents and forms to the appropriate personnel for processing the required report; including providing a secure intake portal to accept and store documents and forms containing non-public personal information
This would include identifying any order regarding a purchase of residential real property by an entity or trust/trustee for cash (without a traditional lender that has a required AML program and who must file SARS) as the term “residential real property” is defined:
1-4 family occupancy residential units (e.g. a stand-alone, such as a single-family residence or townhouse; or even a unit within a multi-unit complex, such as a condo or shares in a coop; or even a residential unit in a mixed use building; as well as entire buildings designed for occupancy by one to four families)
Vacant land upon which the purchasing entity or trust/trustee intends to build a structure that is designed principally for occupancy by 1-4 families building such a residential real property
So, if you have an internal IT team or outsource your IT needs with a particular vendor, having a conversation with them now about how they can help you accomplish the work discussed above would not be premature.
Consider the Final Report’s required information, identifying what you already have and what you need to obtain from other sources – i.e. from the bank, from the purchaser’s representative, the seller or seller’s representative, and from the signer for the purchaser.
The Final Rule requires bank account information for the bank from which the source of funds originated. A title agent does not typically get that information on the wire confirmation or receipt that it receives from its own bank when an incoming wire or certified check is received or deposited. However, you can talk to your bank manager and inquire if the bank would be willing to provide you with that additional information on the documentation that it sends to you.
While the Final Rule only requires retention of the Purchaser’s Certification of Beneficial Ownership Information (and of any Designation Agreement that you may enter into), it is still both important and smart to retain all of the data in writing that is provided to you by others. If a question regarding your compliance should ever arise, then you would have documented evidence to show what you relied upon. This would apply to even an analysis of whether or not you have a reportable transaction under the Final Rule. For example, if the transaction is a purchase of vacant land, you may want to have the buyer’s representative state its future intent for the land in writing (because if it doesn’t intend to build a structure that is designed principally for occupancy by 1-4 families, then you don’t have a reportable transaction under the Final Rule).
Consider the cost of compliance with the Final Rule and how you can make your process be the most efficient and effective in terms of the expense — and perhaps even recoup some of the expense depending upon what your state law and regulator allow.
The biggest cost driver is going to be the administrative personnel’s time for those who will be working on collecting the data and reporting it. Here are some tips that may help:
Have two well-trained staff members whose education, experience, workload and market rate are appropriate for the time and tasks required to comply with the Final Rule. In case one staff member is unavailable to do the reporting, you will have ready coverage by having a backup person. Remember that there is a due date for compliance – which is the later of either:
(i) the final day of the month following the month in which the date of closing occurred; or
(ii) 30 calendar days after the date of closing.
In other words, if November 1st is the closing date, then December 31st would be the last day for submitting a timely report to FinCEN.
If you have very few transactions that would be subject to reporting under the Final Rule, perhaps it does not make sense for you to have your own staff members trained to take on the task. In that event, you may want to investigate your options for designating another reporter as identified in the Final Rule. In this event, you would want to do your due diligence and vetting in advance of December 1, 2025. Be aware that if you see a vendor advertising to provide this service, unless it is identified as an optional designated reporter within the Final Rule, it cannot relieve you of your reporting responsibilities.
This can’t be stressed enough: collect the data from the respective parties or people before the closing date. Our experience with FinCEN’s Geographic Targeting Orders has shown that if you wait until after closing, then you will be wasting a lot of time (and money) chasing after the needed information.
If you have repeat entity or trust customers who typically purchase residential real estate for cash, educate them in advance of the effective date of the Final Rule regarding what to expect. This may help your customers to have their information ready for data collection while at the same time building their trusted relationship with you. The Final Rule does not require confidentiality as to its contents.
Since the Final Rule does not discuss recoupment of cost, there is no federal prohibition against it. Your state laws and regulators will be the ones who ultimately determine what kind of recoupment, if any, is allowed for the expense you will incur to comply with the Final Rule. Start having conversations with your state land title association early, as they are your advocates and may be able to provide you with guidance from your state regulators.
Stay abreast of developments (e.g. any amendments to the Final Rule or FinCEN FAQs) by subscribing to FinCEN News Updates (sent to you via email or text messages). Also, keep an eye out for ALTA’s publications and resources as they become available.
LONGMONT, CO—(October 24, 2024) Alliant National Title Insurance Company and affiliate (“Alliant National”) announced today that it has entered into a definitive agreement to be acquired by Dream Finders Homes, Inc. (“DFH”) (NYSE: DFH).
Presidio Investors (“PI”) acquired Alliant National in 2018 and has been instrumental in helping the company establish robust internal processes, expand geographic reach, improve operational efficiency, and drive technology innovation. In 2023, Alliant National created a leading fraud detection tool designed specifically to streamline the flow of a real estate transaction. This unique solution is fully customizable for title agencies and has robust AI-enabled fraud prevention capabilities. Meredith Moss, Chairperson of the Board of Directors, said, “Alliant National has continued to grow market share through top-tier service to title agents, backed by an innovative software platform and cutting-edge application of AI. Dream Finders’ announcement recognizes the value created by Alliant National’s distinctive approach, which prioritizes both relationships and technology.”
Chris Puscasiu, Managing Partner of Presidio, said, “It has been an exciting six-year journey to see Alliant National dramatically increase its footprint and develop tools to scale and to assist its customers. Despite the uncertainty during the pandemic and the recent housing market challenges, the Company’s continued investment in growth enabled it to be recognized as an innovation leader in its space, as this transaction illustrates. “
The relationships developed over almost 20 years with independent title agents have facilitated this exciting transaction. David Sinclair, President & CEO of Alliant National, said, “We are thrilled to become part of the Dream Finders ecosystem and envision an exciting future together. The collaboration of an innovative builder, strong title agency, and the Alliant National underwriting team will promote our long-term success and growth into a national real estate partner.”
The closing of this transaction is subject to regulatory approvals.
Alliant National, based in Longmont, Colorado, is a title insurance underwriter with more than 700 independent agents in 32 states and the District of Columbia. Alliant National is focused exclusively on the success of independent agents, as the largest underwriter in the country with no direct or affiliated operations.
Understanding the impact of co-ownership on property is crucial for avoiding costly mistakes in real estate transactions. Major life events — such as marriage, divorce, or inheritance — can all significantly affect title and how it’s conveyed. To ensure the right parties are involved and proper procedures are followed, it’s important to grasp the key distinctions between ownership types that come into play when life changes and property conveyance intersect.
Title to real property may be held by sole individuals or entities, termed as sole ownership, or by two or more parties, termed as joint ownership. How joint owners hold title may impact how they convey title when they elect to sell the property, who can convey title if a co-owner passes away, or how property is treated if there is a dissolution of marriage. Depending on your state, the implications in each situation may determine how documents are prepared. A title company may ask for more information to have title conveyed by the appropriate grantor(s) and to also have title held by the grantee(s) pursuant to their wishes based on the permitted state laws.
Understanding the terminology is helpful when considering who may need to execute a conveyance deed or execute a mortgage/deed of trust, or how joint owners may want to take title to real property.
SOLE OWNERSHIP
Sole Ownership is just as it sounds, meaning that one person or entity owns the real property and has complete control over it.
JOINT OWNERSHIP
Tenants in Common is used when co-owners can take equal or unequal shares in the property. SeeThe Law Dictionary. Each co-owner can do what they wish with their share, but only as to their share. For example, a person with a 25% ownership interest in the property can convey their 25% interest (or less) to another person. If a co-owner passes away, their interest will pass to their estate. In this case, the heir or beneficiary of the decedent’s estate will become a tenant in common with the other owners. If the deed is silent to how the co-owners hold title, typically this joint ownership type is viewed to have been created.
Joint Tenancy with the Right of Survivorship allows co-owners to hold title jointly and equally when the four unities are present. These unities are unity of time, unity of title, unity of interest, and unity of possession. SeeFindlaw. If the four unities are broken, then the co-ownership typically changes to a tenants in common. In states that recognizes Joint Tenancy with the Right of Survivorship, upon the death of one of the owners, that ownership is automatically transferred to the remaining surviving owner or owners.
Tenancy by the Entireties is a co-ownership only available for a married couple. In this joint ownership, each spouse owns the entire estate and on the death of one spouse, the real property remains the sole ownership of the surviving spouse. In states that recognize this joint ownership, the deed may only show that they are a married couple (i.e., husband and wife) without any particular wording. However, if the deed does not identify that they are a married couple may cause the real property to be held as tenants in common. Currently there are 25 states that recognize this joint ownership.
Community Property is property owned in common by married couples, or either, during marriage, when not acquired as their separate property. SeeThe Law Dictionary. Each person has an undivided one-half interest in the property by reason of their marital status. Property that was acquired before the marriage, however, typically remains as their separate property. There are also cases in which certain property that is acquired during the marriage and is placed only in the name of one spouse, may be that spouse’s sole and separate property. In the latter, to assist with making it clear, the other spouse may typically execute a written consent and relinquish title, interest and any rights by executing a disclaimer deed and have the instrument recorded in the county land records. There are currently nine (9) states that are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Take a look at each state’s statutes as to how community property is treated in the state.
Let’s look at a few examples of these joint ownerships in action.
Scenario 1
The parties live in a state that recognizes Tenancy by the Entireties. Jake Smith and Vivian Smith acquired title as husband and wife. They are now selling the property, and the prepared deed may read as follows:
Jake Smith and Vivian Smith, husband and wife, as Grantors, to Monica Walker, a single person and Christopher Walker, a single person, as Joint Tenants with Right of Survivorship, as Grantees.
In this case, presuming both are still alive and are still married to each other, then to convey title, the grantors, Jake Smith and Vivian Smith, should execute the deed conveying title to Monica Walker and Christopher Walker.
As for the grantees, you may have noticed that the marital status also shows for each grantee (i.e., in this case, “a single person”) and how they are to hold title under their joint ownership is specifically identified (i.e., “Joint Tenants with Right of Survivorship”).
Scenario 2
Let’s use the same parties but change the situation slightly regarding the grantors. In this case, Jake Smith and Vivian Smith previously took title to the real property without any reference to their marital status. Now they are selling the property, and the conveyance deed was prepared as follows:
Jake Smith and Vivian Smith, as Grantors, to Monica Walker, a single person and Christopher Walker, a single person, as Joint Tenants with Right of Survivorship, as Grantees.
In most states, in this situation, the grantors are found to hold title as Tenants in Common. As you may recall, if prior to the conveyance Jake Smith passed away, for example, then his interest would go to his heirs or beneficiaries of his estate, depending on the probate laws of the state.
Also, in this situation, we are missing the grantor’s marital status. As a best practice, the parties’ marital status should be reflected on the deed when they acquired title and when they convey title. The purpose of this is so that any marital interest in the property may be addressed. Thus, it may be required that the spouse of the grantor also executes the deed to convey their marital interest in the property to the grantees, depending on your state.
Scenario 3
In this last scenario, what happens if Jake Smith and Vivian Smith, as husband and wife, acquired title but while in title, their marriage is dissolved? Jake Smith now says he wants to sell the property.
In this situation, a complete copy of the final judgment to dissolve their marriage should be obtained from the family court records. Also, as a best practice, the final judgment should be recorded in the county land records. Recording of the final judgment provides notice that the joint ownership was severed and how the property was distributed by the court. It is important to thoroughly read the final judgment regarding who was awarded the real property. For example, the court may order that both parties will continue to hold title, which means they most likely are holding as tenants in common. Alternatively, the court may have ordered one party to execute a deed to convey title to the other party. In the claims department, on occasion, we do find that the court’s instruction to execute, and record, a deed was not completed. This may lead to extra legwork in either having to find the other party for a deed to the other spouse and to have it recorded in the county land records, or to go back to the court for it to enter an order declaring the title is in the spouse and record the new order in the county land records.
CONCLUSION
With everyday life changes, a person may take title as a single person but may be married when they are ready to convey title, for example. From sole ownership to joint ownership, and from marital property to non-marital property, understanding terminology and gathering accurate information to uncover how parties hold title and the proper parties needed to convey title, these all play an important role in real property ownership.
This blog contains general information only, not intended to be relied upon as, nor a substitute for, specific professional advice. We accept no responsibility for loss occasioned to any purpose acting on or refraining from action as a result of any material on this blog.
The economy remains on track as we head into the closing months of 2024, with inflation subsiding under the Federal Reserve’s tight management and employment remaining surprisingly resilient, though softening in recent months.
On the real estate front, high interest rates and low inventory have stymied the industry, with new single-family home sales plunging 11.3% in May and existing sales falling to an annualized rate of 3.89 million in June, a two-month period that normally sees accelerated buying trends.
The hoped-for rate cuts by the Federal Reserve that might have given the market a boost in the coming months have not materialized, with Treasury Secretary Jerome Powell announcing on July 31 that the federal funds rate would stay put at 5.25-5.5% for the near term, while holding out hope that there may be some downward movement before years’ end.
“FOMC participants wrote down their individual assessments of an appropriate path for the federal funds rate, based on what each participant judges to be the most likely scenario going forward,” Powell said in his report. “If the economy evolves as expected, the median participant projects that the appropriate level of the federal funds rate will be 5.1% at the end of this year, 4.1% at the end of 2025, and 3.1% at the end of 2026. But these projections are not a Committee plan or any kind of a decision.”
In his comments, Powell acknowledged that while the Fed is not yet confident enough to pull back from their efforts to control inflation, reducing policy restraint too late or too little could have an undue negative impact on economic activity and employment. That fear seemed to come to fruition when the July jobs report came in weaker than expected, sending Wall Street into a tailspin on August 2nd as fears of recession escalated in the financial community. However, markets have largely recovered since that drop.
In a reaction to the U.S. Commerce Department report on Q2 GDP, MBA SVP and Chief Economist Mike Fratantoni acknowledged several components in the report indicating a potential slowdown for the economy but also pointed to positive signs in the recent inflation data that he hoped “would provide enough confidence for the Federal Reserve to cut rates in September.”
While that remains to be seen, consumer confidence, interest rates, home sales, and new home construction remain in limbo, subduing hopes for any substantial real estate boost this year.
Consumer confidence shows signs of improvement
Dana M. Peterson, Chief Economist at The Conference Board, said that consumer confidence increased in July but remained in a narrow range that has prevailed over the past two years. “Even though consumers remain relatively positive about the labor market, they still appear to be concerned about rising prices and interest rates, and uncertainty about the future; things that may not improve until next year,” she said.
Interest rates staying put
It remains to be seen if a slowing economy will kickstart a movement towards lowering fed funds rates in the near term, but interest rates have remained in the sub-7% range this summer after reaching 8.5% in October 2023. According to the Freddie Mac economists’ July outlook, interest rates are expected to stay above 6.5% through the end of the year. Fannie Mae is also forecasting interest rates to remain at 6.8% through the end of the year, falling back only slightly to 6.4% in 2025, leaving little hope for the recovery that was so optimistically anticipated at the outset of the year.
Home price growth could pull back
According to the July 2024 commentary from the Fannie Mae Economic and Strategic Research (ESR) Group, home price growth in the second quarter was stronger than previously anticipated but will likely moderate soon, closing 2024 and 2025 at annual rates of 6.1% and 3.0%, respectively. The CoreLogic HPI Forecast concurs, indicating in its July report that home prices are expected to rise only 3% on a year-over-year basis from May 2024 to May 2025.
New home sales soften, existing home sales improve slightly
According to the U.S. Department of Housing and Urban Development and the U.S. Census Bureau, sales of newly built, single-family homes in June fell 0.6% to a 617,000 seasonally adjusted annual rate from a slight upwardly revised reading in May. The pace of new home sales is down 7.4% from a year earlier.
Jing Fu, NAHB director of forecasting and analysis, reported in July that new home inventory in June remained elevated at a 9.3 months’ supply.
“At the current building pace, there is still a long-run need for more construction because existing inventory remains relatively low,” he said. “Due to a lack of resale homes for sale, the combined inventory for new and existing single-family homes remains lean at a 4.7 months’ supply, according to NAHB estimates.”
After a lackluster May and June, pending home sales rose 4.8% in June, according to the National Association of Realtors, but the numbers remain low compared to past years.
Broader outlook murky
Across the board, economic and housing forecasts remain tentative and conservative, as economists keep an eye on a host of uncertain elements, including the volatility of the global economy, the Federal Reserve’s tight fiscal policy, a jittery stock market, and an era of consumer pessimism. However, should the Federal Reserve begin interest rate cuts in September as hoped for, many of these issues could ease considerably, opening the door for a more promising final quarter.
Millennials and Gen Z are entering the housing market in greater numbers, and it’s a big opportunity for title agents, particularly given the static housing market. It’s no secret that real estate sales were down in 2023, and that trend has continued throughout the first part of 2024. Capturing the pent-up demand of younger buyers is one way to overcome market challenges and boost profitability. But success hinges on shifting your mindset and adopting the right tools and strategies. Here’s how to do it across a few key marketing channels.
The long road to homeownership for Millennials and Gen Z
For many Millennials, it has been a difficult road to homeownership, and not because of eating too much avocado toast.[i] The 2007 financial crisis and subsequent Great Recession is one reason why Millennial homeownership has often lagged their generational predecessors. The picture has changed, however, in recent years. Nearly 40% of new home buyers are now Millennials. The generation also makes up the highest percentage of first-time buyers, increasing their proportion from 70% to 75% over the past year.[ii] Not to be outdone is Gen Z. Data shows that 30% of 25-year-olds are homeowners – 3% higher than their Gen X parents when they were the same age.[iii] While Gen Z currently only makes up 4% of national homebuyers, major subsections such as single women are trending higher than other generations.[iv]
Social media
Let’s begin exploring how to reach these folks by looking first at social media. Why? Well, because it is perhaps the single most important channel for marketing to younger buyers. More than 1 in 4 Millennials use social media to find products and services, and nearly half use different social platforms to conduct research.[v] Blogs circulated via social are even more popular, with 1 in 3 relying on blogs to inform purchasing decisions.[vi] By developing your social presence and incorporating best practices like short-form video, you can amplify your impact and grow your brand.
Mobile friendliness
These days, having a mobile-friendly online presence is a must, especially if you are trying to reach Millennials and Gen Z. Research shows that over 96% of internet users ages 16-64 own a smartphone[vii] and nearly 62% of all website traffic comes from mobile.[viii] Stats like these don’t even speak to the popularity of apps geared toward mobile users. Data shows Gen Z currently spends between 24-48 hours per month on TikTok – which amounts to approximately 24 full days every year![ix]
What does this mean for title agencies? Just put yourself in the mindset of a consumer! Let’s say title agency #1 has a website that looks great on your mobile device while title agency #2 website does not. Which one would you think is going to take care of your closing needs more effectively? I suspect you already know the answer.
Online reviews
One characteristic of younger generations is that they grew up using review sites like Yelp, Google, Foursquare, etc. This trend has continued to the present day. For example, 86% of Gen Z reads reviews ahead of making a first-time purchase.[x] Data like this means your agency must establish a presence on review sites and stay active by responding to user comments and complaints. The benefits of doing so are two-fold. You will become more visible to younger users. And you will showcase that you are a responsive, reliable company committed to their satisfaction.
Partnerships
Even in a digital-first economy like ours, good old word-of-mouth marketing still can’t be beaten. One of the best ways to build positive buzz for your brand is by developing relationships with the real estate agents who guide customers through the home-buying process.
Final thoughts
As anyone involved in real estate knows, this industry is always changing. The rise of Millennial and Gen Z home buyers is just one recent development. By getting digitally savvy, meeting these younger buyers where they are, and making an honest effort to create positive word-of-mouth, you can capture their business and grow your own profitability.
