Bulletin 1998 V29-2

The Commission's position on...
Affinity Practices

In real estate, an "affinity group" is an association of people sharing a common interest; e.g., same employer, same trade or nonprofit organization, same club, etc. Increasingly, these respective groups are partnering with real estate companies to steer their members' real estate business to agents who will share their compensation with the members when the members relocate.

Typically, when a member of the affinity group wishes to purchase a new home, the member will contact the group's real estate "partner" - a licensed real estate firm - who, in turn, will refer the purchaser to a real estate agent or firm in the locality where the member wishes to relocate. In return for the referral, the local agent agrees to pay a referral fee to the referring firm who often passes a portion of the fee along to the buyer-member.

In North Carolina, this practice is lawful if the referring agents or firm are acting lawfully in their own states; i.e., those making the referrals are properly licensed as real estate agents under the laws of the state where they are located.  It's lawful even if the buyer receives a portion of the money, because under North Carolina law, buyers are exempt from the licensing requirement and may receive a portion of the real estate fees paid in their own transaction. (Whenever a seller's agent shares his fee with a buyer, however, it is important that the agent first obtain his seller-client's permission and that the payment is reported on the closing statement and disclosed to the buyer's lender.)

One complaint concerning "affinity group" arrangements is what is referred to as the "after-the-fact referral" - made to the local agent after he or she is already working with the referred buyer. The question then arises whether the local agent must pay the requested referral fee, and the answer is usually no. To be enforceable, the fee-sharing arrangement must derive from an express or implied contract. Unless the local agent has contractually promised to pay the fee, there is no obligation.