H. B. 4801


(By Delegates Trump and Staton)
[Introduced February 24, 2006; referred to the
Committee on the Judiciary.]




A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §46A-6L-1, §46A-6L-2 and §46A-6L-3, all relating to unfair trade practices of residential real estate developers; legislative findings; definitions; prohibiting residential real estate developers from offering or providing any inducement or incentive to any purchaser or prospective purchaser of residential real estate to obtain a real estate mortgage loan from any provider of residential real estate loans with whom the residential real estate developer has an affiliated business arrangement; creating a misdemeanor offense and penalties; providing that a violation is an unfair or deceptive practice and is subject to certain enforcement provisions and remedies.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §46A-6L-1, §46A-6L-2 and §46A-6L-3, all to read as follows:
ARTICLE 6L. PROTECTION OF CONSUMERS FROM UNFAIR TRADE PRACTICES BY RESIDENTIAL REAL ESTATE DEVELOPERS.

§46A-6L-1. Legislative findings.
The Legislature finds that in recent years some residential real estate developers may be taking unfair advantage of consumers who purchase residential real estate from them, by offering incentives or inducements to purchasers in the sale of residential real estate only if the consumers utilize certain other settlement services provided by the developers or provided by persons or entities which have affiliated business arrangements with the developers or if the consumers obtain financing to purchase the residential real estate from a provider of real estate loans with which the developer has an affiliated business arrangement; that in many such instances, the rate of interest upon the loan principal and the costs of loan charges and fees charged to the purchaser to obtain the loan may be greater than what may be available to the purchaser through other providers of residential mortgage loans, resulting in greater expense and costs to the purchaser. The Legislature further finds that such practices by developers take unfair advantage of purchasers of residential real estate and is against the public policy of the state.
§46A-6L-2. Definitions.
(a) "Residential real estate developer" means any person who owns, develops and offers for sale three or more parcels of residential real estate in a calendar year to a natural person who incurs a consumer or mortgage real estate loan upon residential real estate or is a consumer of residential real estate;
(b) "Real estate loan" means a loan which is secured by a first or subordinate lien upon residential real estate and is designed or intended to pay all or a portion of the cost to purchase or construct improvements upon residential real estate;
(c) "Real estate settlement service" means any service in connection with the sale of residential real estate for which purchasers of residential real estate ordinarily pay; "real estate settlement service" includes, but is not limited to, such things as purchasing property and casualty insurance, settlement or closing of the real estate transaction, appraisals of real estate, examinations of title, and obtaining or issuing title insurance.
(d) "Residential real estate" means real property with an improvement thereon of a single family dwelling or individual units of condominiums and cooperatives designed for the occupancy of from one to four families;
(e) "Inducement or incentive" means a discount in the price of the residential real estate, a rebate, the payment of all or some of the closing costs for the real estate transaction, the addition of some amenity to the residential real estate, a reduction in the purchase price or the offer of any other thing of value, including payment, advance, funds, loan, service or other consideration.
(f) "Affiliated business arrangement" means an arrangement in which a real estate developer, or any associate of a real estate developer, is in a position to receive any money or thing of value, other than the proceeds of sale of the residential real estate, as a result of the purchaser's utilization of any particular real estate settlement service or as a result of purchaser taking a real estate loan made or originated by a particular person or entity. (g) "Associate" means:
(1) With respect to a residential real estate developer who is a natural person;
(i) A spouse, parent, or child of the real estate developer;
(ii) An employee, agent, or partner of the real estate developer;
(iii) Any corporation, partnership, limited partnership, trust, limited liability company, limited liability partnership or other business entity of any kind in which the real estate developer has any ownership interest or in which the real estate developer is a director, officer, partner, manager or member; or
(iv) Any person, corporation, partnership, limited partnership, trust, limited liability company, limited liability partnership or other business entity of any kind with which the real estate developer has any agreement, arrangement or understanding, the purpose or substantial effect of which is to allow the real estate developer or an associate of the real estate developer to benefit financially, by the receipt of funds other than the sale proceeds of the residential real estate;
(2) With respect to a residential real estate developer which is other than a natural person;
(i) Any employee, agent, partner, director, officer, member, manager or shareholder or owner of any interest in the residential real estate developer;
(ii) A spouse, parent or child of any person identified in paragraph (i), subdivision (2), subsection (g), section two, article six-l, chapter forty-six-a above;
(iii) Any corporation, partnership, limited partnership, trust, limited liability company, limited liability partnership or other business entity in which the real estate developer has any ownership interest or in which the real estate developer is a director, officer, partner, manager or member;
(iv) Any corporation, partnership, limited partnership, trust, limited liability company, limited liability partnership or other business entity in which any person who would be defined as an associate of the real estate developer under paragraph (i), subdivision (2), subsection (g), section two, article six-l, chapter forty-six-a or paragraph (ii), subdivision (2), subsection (g), section two, article six-l, chapter forty-six-a above; has any ownership interest or is a director, officer, partner, manager or member.
§46A-6L-3. Prohibition of certain inducements or incentives offered by residential real estate developers to purchasers; penalties, enforcement and remedies for violations.

(a) No residential real estate developer may condition the sale of residential real estate upon a requirement that the purchaser use or obtain from the real estate developer or from an associate of the real estate developer any real estate settlement service or obtain a real estate loan from the real estate developer or from an associate of the real estate developer.
(b) No residential real estate developer may offer to any purchaser of residential real estate any inducement or incentive conditioned upon a requirement that the purchaser use or obtain from the real estate developer or from an associate of the real estate developer any real estate settlement service or obtain a real estate loan from the real estate developer or from an associate of the real estate developer.
(c) No residential real estate developer may increase the price of residential real estate to any purchaser as a result of purchaser's election to use or obtain any real estate settlement service of purchaser's own choosing or as a result of purchaser's election to obtain a real estate loan from a lender of purchaser's choosing.
(d) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or confined in jail not more than one year, or both fined and imprisoned.
(e) A violation of this section is an unfair or deceptive practice within the meaning of section one hundred two, article six of this chapter and is subject to the enforcement provisions and remedies provided by this chapter.

Note: The purpose of this bill is to prohibit residential real estate developers from offering or providing any inducement or incentive to any purchaser or prospective purchaser of residential real estate to obtain a real estate mortgage loan from any provider of residential real estate loans with whom the residential real estate developer has an affiliated business arrangement; creates a misdemeanor offense and penalties; provides that a violation is an unfair or deceptive practice and is subject to certain enforcement provisions and remedies.

§46A-6L-1, §46A-6L-2 and §46A-6L-3 are new; therefore, strike-throughs and underscoring have been omitted.