(1) A payment by an HWC for marketing services performed by real estate brokers or agents on behalf of the HWC that are directed to particular homebuyers or sellers is an illegal kickback for a referral under Section 8 of RESPA.

(2) Depending upon the facts of a particular case, an HWC may compensate a real estate broker or agent for services when those services are actual, necessary and distinct from the primary services provided by the real estate broker or agent, and when those additional services are not nominal and are not services for which there is a duplicative charge.

(3) The amount of compensation from the HWC that is permitted under section 8 for such additional services must be reasonably related to the value of those services and not include compensation for referrals of business.

To evaluate whether a payment from an HWC is an unlawful kickback for a referral, HUD may look in the first instance to whether, among other things:

• The compensation for the HWC services provided by the real estate broker or agent is contingent on an arrangement that prohibits the real estate broker or agent from performing services for other HWC companies (i.e., if a real estate broker or agent is compensated for performing HWC services for only one company, this is evidence that the compensation may be contingent on such an arrangements).
  

• Payments to real estate brokers or agents by the HWC are based on, or adjusted in future agreements according to, the number of transactions referred. If it is subsequently determined, however, that the payment at issue is for only compensable services, the existence of such arrangements and agreements would not be an indicator of an unlawful referral arrangement, and would be permissible.

In analyzing whether a particular payment or fee bears a "reasonable relationship to the value of the goods or facilities actually furnished or services actually performed," payments must be commensurate with that amount normally charged for similar services, goods or facilities.

If the payment or a portion thereof bears no reasonable relationship to the market value of the goods, facilities or services provided, the excess over the market rate may be used as evidence of a compensated referral or an unearned fee in violation of Section 8(a) or (b) of RESPA. [See 24 CFR 3500.14(g)(2)]

The market price used to determine whether a particular payment meets the reasonableness test may not include a referral fee or unearned fee, because such fees are prohibited by RESPA.