Compliance · Referrals
RESPA Section 8
Also known as: RESPA Section 8, 12 U.S.C. 2607, Regulation X anti-kickback rule, Marketing services agreement (MSA)
RESPA Section 8 bans paying or accepting anything of value for referrals of settlement service business on a federally related mortgage loan, and bans splitting fees for unearned services. It reaches any person, not only lenders and brokers, and it does not require a written agreement: a practice, pattern or course of conduct is enough. Marketing services agreements, sponsorships, co-marketing and lead purchases are all analyzed under the same three elements, and the CFPB enforces it.
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The three elements of a Section 8(a) violation
Section 8(a) is a three-part test, and all three parts have to be present. Labels and intent do not settle it. Regulation X defines each element so broadly that most of the argument in practice lands on the second one, the agreement or understanding, which does not have to be written down.
| Element | How Regulation X defines it | Where it shows up in marketing |
|---|---|---|
| Thing of value | Defined without limitation at 12 CFR 1024.14(d) to include discounts, commissions, fees, the opportunity to participate in a money-making program, services of all types at special or free rates, sales or rentals at special prices, lease or rental payments based in whole or in part on the amount of business referred, and trips and payment of another person's expenses. Payment is synonymous with giving or receiving a thing of value and does not require the transfer of money. | Free video production, a comped booth or trip, a discounted rate card, editing software paid for on someone else's behalf. |
| Agreement or understanding | Need not be written or verbalized and may be established by a practice, pattern or course of conduct. When a thing of value is received repeatedly and is connected in any way with the volume or value of the business referred, that receipt is itself evidence of an agreement or understanding (1024.14(e)). | A sponsorship that is quietly renewed after a strong referral quarter, or a spend level everyone knows tracks loan volume. |
| Referral | Any oral or written action directed to a person that has the effect of affirmatively influencing that person's selection of a settlement service provider, plus any arrangement that requires the use of a particular provider (1024.14(f)). The CFPB's FAQs add that prohibited referrals are not limited to those directed at consumers. | A call to action naming one loan officer, a pre-filled application link, or an on-camera instruction to call a specific lender. |
The transaction has to involve a federally related mortgage loan, and the business referred has to be incident to or part of a real estate settlement service. Settlement service is defined broadly at 12 U.S.C. 2602(3) and covers loan origination, closing services, title services and title insurance, document preparation, surveys, inspections and appraisals, credit reports, and the services of attorneys, real estate agents and mortgage brokers.
Section 8(b): splitting a charge nobody earned
Section 8(b) is a separate prohibition and it does not require a referral at all. It bans giving or accepting any portion, split or percentage of a charge made for a settlement service other than for services actually performed. Regulation X adds that a charge for which no or nominal services are performed, or for which duplicative fees are charged, is an unearned fee and violates the section. The source of the payment does not decide whether a service is compensable, and the prohibition cannot be dodged by arranging for the purchaser of the services to split the fee instead.
The Section 8(c) exemptions
Section 8(c), implemented at 12 CFR 1024.14(g)(1), lists payments that Section 8 does not prohibit. Two of them carry almost all the weight in marketing arrangements: (g)(1)(iv), payment for goods or facilities actually furnished or services actually performed, and (g)(1)(vi), normal promotional and educational activities.
| Exemption | What it permits |
|---|---|
| 1024.14(g)(1)(i) | A payment to an attorney at law for services actually rendered. |
| 1024.14(g)(1)(ii) | A payment by a title company to its duly appointed agent for services actually performed in issuing a title policy. |
| 1024.14(g)(1)(iii) | A payment by a lender to its duly appointed agent or contractor for services actually performed in the origination, processing, or funding of a loan. |
| 1024.14(g)(1)(iv) | A bona fide salary or compensation or other payment for goods or facilities actually furnished or for services actually performed. This is the provision every marketing services agreement, sponsorship, and media buy relies on. |
| 1024.14(g)(1)(v) | Payments under cooperative brokerage and referral arrangements between real estate agents and brokers. Regulation X states this covers only fee divisions within real estate brokerage arrangements when all parties are acting in a brokerage capacity, and has no applicability to fee arrangements between real estate brokers and mortgage brokers, or between mortgage brokers. |
| 1024.14(g)(1)(vi) | Normal promotional and educational activities that are not conditioned on the referral of business and that do not involve defraying expenses that would otherwise be incurred by persons in a position to refer settlement service business. |
| 1024.14(g)(1)(vii) | An employer's payment to its own employees for any referral activities. |
The fair market value test sits at 1024.14(g)(2). If a payment bears no reasonable relationship to the market value of the goods or services provided, the excess is not for services actually performed. The value of the referral itself, meaning any additional business the referral brings, cannot be counted when working out whether the payment exceeds reasonable value. It also does not matter that the giver never raised a consumer charge to fund the payment.
Normal promotional and educational activities: two conditions
The promotional carve-out at 1024.14(g)(1)(vi) has exactly two conditions, and the CFPB's RESPA FAQs treat failing either one as fatal. The activity must not be conditioned on referrals of business, and it must not defray expenses the referral source would otherwise incur. Both are questions of fact.
| Condition | Factors the CFPB FAQs point to | Applied to content marketing |
|---|---|---|
| Not conditioned on referrals | Whether the item or activity is targeted narrowly at prior, ongoing, or future referral sources, and how often a given referral source receives it. Offering it to a broader set, such as the general public or all settlement service providers offering similar services in a locality, points the other way. | A public webinar or an open YouTube series is on much better footing than a private, invitation-only series for the agents who send the most files. |
| Does not defray the recipient's expenses | Whether the good or service is something the referral source would otherwise pay for. The FAQs name mandatory continuing education, certifications, and licenses as classic defrayal. Office supplies branded with the referral source's own name and logo are more likely to defray expenses; supplies carrying the provider's name and logo are less likely to, because the recipient would not have bought them anyway. | Producing videos that carry the lender's brand and live on the lender's channel is a different fact pattern from paying to produce an agent's own branded channel content. |
The FAQs work through examples. A one-time drawing announced to every previous customer and every loan originator in the city, with entries made automatically regardless of referrals, is more likely to meet both conditions. The same drawing sent only to selected loan originators, with entries awarded per referral, is likely not a normal promotional activity and may itself be an 8(a) violation. A continuing education course priced at fair market value and open to all local agents is more likely to qualify. The same course with the fee waived is likely not, even if the waiver goes to every agent regardless of referrals, because the waiver reduces a license-related expense the agents would otherwise carry.
How marketing arrangements are analyzed
Marketing services agreements are not mentioned anywhere in RESPA or Regulation X. The CFPB's FAQs say entering into, performing under, and paying under an MSA are not prohibited acts in themselves, and that the answer depends on the facts and circumstances, including how the MSA is structured and how it is implemented. The CFPB rescinded its 2015 bulletin on RESPA compliance and marketing services agreements on October 7, 2020, and said at the same time that the rescission does not make MSAs per se or presumptively legal.
The FAQs also draw the line the whole analysis turns on. A referral is directed at a person. A marketing service is generally targeted at a wide audience, and placing advertisements in widely circulated media such as a newspaper, a trade publication, or a website is a marketing service. Payments for marketing services can fit inside 8(c)(2). Payments for referrals cannot.
| Arrangement | Analyzed as | Safe if | Risk |
|---|---|---|---|
| Lender sponsors a real estate agent's YouTube channel | A thing of value to a person in a position to refer, tested against 8(c)(2) for services actually performed and against the promotional carve-out. | The sponsorship buys defined, delivered advertising placements aimed at the agent's general audience, priced against comparable local sponsorship rates, with no commitment about where the agent sends clients. | Renewal or spend that tracks referral volume, or funding that covers production the agent was already paying for, which fails the second condition of 1024.14(g)(1)(vi). |
| Co-branded video produced with an agent | Payment for goods or services actually furnished under 1024.14(g)(1)(iv), with each side's contribution valued separately. | Each party pays its own share of production cost in proportion to the benefit received, and the split is documented against a real cost basis. | The lender absorbs the whole cost while the agent gets equal brand exposure. The unfunded share is a thing of value flowing to a referral source. |
| Paid placement in an agent's newsletter | A media buy, which the FAQs treat as a marketing service because it is aimed at a wide audience rather than at a person. | The rate matches what the same placement sells for to unrelated advertisers, the placement actually ran, and proof of the run is kept. | A rate set above market, a placement invoiced but never published, or a newsletter list built only from that agent's active buyers. |
| Lead purchase priced per lead | Payment for goods actually furnished, if the lead itself is the deliverable and not a referral of a person already inside a settlement transaction. | The price reflects the market value of the data, is fixed in advance, and does not change with what happens after the handoff. | The seller is also a settlement service provider affirmatively steering its own clients, which turns the same payment into a referral fee. |
| Lead purchase priced per closed loan | Payment whose amount is connected to the volume and value of business referred, which 1024.14(e) treats as evidence of an agreement or understanding. | There is essentially no safe version of this structure between settlement service providers. | Success-based pricing is the fact pattern Section 8(a) was written for, and the value of the referral cannot be counted toward market value under 1024.14(g)(2). |
| Joint webinar with a lender and an agent | A normal promotional or educational activity if the two conditions are met, otherwise a thing of value. | Costs are shared in proportion to the benefit, the audience is open rather than an invitation list of top referrers, and no one's mandatory continuing education is being paid for. | The lender covers the whole cost, the invitation goes only to producing agents, or attendance earns CE credit the agent would otherwise buy. |
| Desk rental in an agent's office | Payment for facilities actually furnished under 1024.14(g)(1)(iv), tested for market value under 1024.14(g)(2). | Rent matches the market rate for comparable space and terms, the space is genuinely used, and the amount never varies with business volume. | Rent above market, rent for space that sits empty, or rent based in whole or in part on the amount of business referred, which 1024.14(d) names outright as a thing of value. |
| Free equipment or software given to a referral source | A thing of value. Appendix B to Regulation X addresses this directly. | There is no version of this that survives if it is given in exchange for referrals. | Appendix B, illustration 6, holds that a fax machine supplied free or at a reduced rate based on volume violates Section 8, and extends the same treatment to copying machines, computer terminals, printers and other like items with general use to the recipient. |
Penalties
| Exposure | Detail | Source |
|---|---|---|
| Criminal | A fine of not more than $10,000 or imprisonment for not more than one year, or both. | 12 U.S.C. 2607(d)(1) |
| Civil, treble damages | Violators are jointly and severally liable to the person charged for the settlement service, in an amount equal to three times the amount of any charge paid for that settlement service. | 12 U.S.C. 2607(d)(2) |
| Injunction | The Bureau, the Secretary, or a state attorney general or insurance commissioner may bring an action to enjoin violations. The Bureau has primary authority to enforce and administer the section. | 12 U.S.C. 2607(d)(4) |
| Costs and fees | A court may award the prevailing party court costs together with reasonable attorney fees in a private action. | 12 U.S.C. 2607(d)(5) |
| Recordkeeping | Any documents provided under the section must be retained for five years from the date of execution. | 12 CFR 1024.14(h) |
What this means for your marketing
Section 8 reaches any person, so an agency that is not a settlement service provider is still inside the deal it designs. RESPA defines person to include individuals, corporations, associations, partnerships and trusts, and the CFPB's FAQs note that an MSA may involve third parties who are not settlement service providers. The agency's own fee is rarely the problem. The structure the agency writes into the sponsorship, the co-marketing split, or the lead contract is what gets read against 8(a) and 8(b).
Price the deliverable, never the outcome. A fee that moves with closed loans, applications, or funded volume is a payment connected to the volume or value of business referred, and 1024.14(e) treats repeated payments of that shape as evidence of an agreement or understanding. Fixed fees tied to episodes delivered, placements run, or impressions served do not carry that evidentiary problem.
A marketing service has to face an audience, not a person. The CFPB's line is that a referral is directed to a person and a marketing service is generally targeted at a wide audience, with ads in widely circulated media given as the example. A YouTube series, a public webinar, and a newsletter placement all sit on the marketing side. A warm handoff of one borrower's contact details does not, no matter what the contract calls it.
Keep evidence that the service was performed, not just a signed agreement. Section 8(b) and 1024.14(c) turn nominal or duplicative work into an unearned fee, and the FAQs list services that are not actually performed, are nominal, or are duplicative among the ways an MSA becomes unlawful in implementation. Published URLs, air dates, view counts, and the rate benchmark used to set the price are the file that answers that question. Documents provided under the section have a five-year retention requirement.
Paying for production the referral source already owed for is the quiet way to fail the carve-out. The second condition of the promotional exemption is about defrayal, and the FAQs use branded office supplies to draw it: supplies carrying the referral source's own name and logo are more likely to defray their expenses, supplies carrying the provider's are less likely to. Video work follows the same logic. Content that carries the lender's brand and lives on the lender's channel is not the agent's expense. Content that builds the agent's own channel is.
What this looks like in a sponsorship brief
A thing of value paid alongside an understanding that settlement service business will be referred is the Section 8(a) fact pattern, and the understanding does not have to be written to count.
Compensation that varies with closed loans is connected to the volume and value of business referred, and the value of the referral cannot be counted toward the market value of the services under 1024.14(g)(2).
Equipment with general use to the recipient is the Appendix B illustration 6 problem, and paying for tools the agent would otherwise buy fails the second condition of the promotional carve-out.
Section 8(b) treats nominal or duplicative work as an unearned fee, so the delivery record is what shows the payment bought something. Documents provided under the section carry a five-year retention requirement.
Common questions
Primary sources
- 12 U.S.C. 2607, Prohibition against kickbacks and unearned feesfull statutory text, including the 8(d) penalties
- 12 CFR 1024.14, Prohibition against kickbacks and unearned fees (Regulation X)the implementing rule, including the 8(c) exemptions at (g)(1)
- Appendix B to 12 CFR Part 1024, Illustrations of Requirements of RESPAworked fact patterns, including the equipment illustration
- CFPB, Real Estate Settlement Procedures Act FAQsSection 8, gifts and promotional activity, and MSAs, last updated 10/7/2020
- CFPB, Bulletin 2015-05 rescission notice, RESPA compliance and marketing services agreementsrescinded October 7, 2020
Related terms
Daniel Schoester
Founder & CEO
Daniel Schoester combines years of SEO obsession with financial know-how. After receiving an Honours Bachelor of Business Administration (Finance), Daniel began working at a prominent mortgage website, where his content quickly quadrupled monthly traffic to over one million views.
Building on this success, Daniel launched Croton Content to help clients scale through evergreen content assets — notably working with Forbes Advisor, Moneywise, and Hardbacon.
In 2024, Daniel expanded his focus to YouTube after studying Google’s algorithm changes. He noticed YouTube’s increasing alignment with search visibility compared to traditional written SEO content — plus its ability to generate passive revenue and long-term brand authority.
Educational information only. This is not legal or compliance advice. Confirm current requirements with your compliance officer and the primary sources above.
Last reviewed: 10 September 2026 · Reviewed against 12 U.S.C. 2607, Regulation X at 12 CFR 1024.14 and Appendix B to Part 1024, and the CFPB's RESPA FAQs as last updated 10/7/2020.