I would like you take on something, we are being instructed to include all of the realtor commission on the Loan Estimate in the event the sales contract does not specifically state who is responsible for the payment of the commission.
In our markets (as in most I would imaging) it is customary for the Seller, unless it is a FISBO, to pay the commission due. In some instances there may be a small (less then $500) buyers agent fee that the buyers are responsible for, but that is typically it.
Have we gone to far in our interpretation of TRID?
The disclosure of realtor commissions on TRID disclosures is driven by 1026.37(g)(4) – Other Costs section; however, there is nothing in the regulation, commentary, or preamble that “requires” the disclosure of all realtor commissions on the Loan Estimate in the event the sales contract doesn’t specify the responsible party.
.37(g)(4) states the section includes, “…an itemization of any other amounts in connection with the transaction that the consumer is likely to pay or has contracted with a person other than the creditor or loan originator to pay at closing and of which the creditor is aware at the time of issuing the Loan Estimate…” The Loan Estimate must be based on the creditor’s good faith – best information reasonably known to the creditor at the time of disclosure. If it is not customary and standard in your area for the borrower to pay any of the real estate commission due then it shouldn’t be disclosed unless otherwise detailed in the sales contract or obtained through some other form of due diligence on the creditor’s part. The commissions will, however, need to be disclosed on the Closing Disclosure based on the 1026.38(g)(4)-4.