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Paralegal 101: The Supremacy Clause and Appraisal Issues

Paralegal 101: The Supremacy Clause and Appraisal Issues

"The Supremacy Clause of the United States Constitution provides that federal laws shall be the supreme law of the land and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding (U.S. Const. art. VI, cl. 2); and it vests in Congress the power to supersede not only state statutory or regulatory law but common law as well. Indeed, under the U.S. Constitution's Supremacy Clause, the purpose of a court's preemption analysis is to ascertain the intent of Congress." {Lexus-Nexus: Constitutional Law > Supremacy Clause > Federal Preemption}

Why did I say this? After all, it is not exactly a light and fluffy morning conversation to share over Frosted Flakes, eh?

I said this to remind my beloved virtual family that a private rule or regulation can not supersede a local, state or federal law.

Federal law is going to trump all in the end if the appeal goes high enough through the system so if you are going to mentor people please be careful of the generic advice you give them.

I love being silly but I am not a silly person all of the time. Just because I don't always comment doesn't mean that I do not read you. People are always sending me links to check stuff out or give an opinion. Sometimes they also forward other people's e-mail in an effort to get me to join a conversation.

(1) I am not a lawyer.

(2) I do not give legal advice.

(3) I have generic or personal points of view which may or may not be helpful to someone who reads me.

(4) I have a disclaimer on my profile page, sidebar and under every post in my signature section that clearly states you should hire an appropriate professional.

There are going to be times when I am not the appropriate professional and I am going to tell you to search elsewhere for the answers you seek. Having a conversation with a blogger or a friend is only that: a conversation. Unless you have retained a qualified professional to help you solve your issue, you, the writer/reader/inquirer must remember that no blogger in this forum is obligated to answer you. We usually do, but sometimes we remain silent...

A few of you are not appraisers but you have been answering appraisal questions. A Broker's Price Opinion is not the same as an appraisal. Be very careful how you phrase your comparative market analysis valuation answers if you choose to write about or mentor newbs like me on the subject or answer a member of the public.

Each U.S. State or territory has a State Appraiser Regulatory Agency responsible for certifying and licensing Real Estate Appraisers and supervising their appraisal-related activities, as required by Federal law.

"The uniform standards described in 12 U.S.C.S. § 3331 are defined in 12 U.S.C.S. § 3339 which requires that the Office of Thrift Supervision, as a Federal financial institution regulatory agency shall prescribe appropriate standards for the performance of real estate appraisals in connection with federally related transactions under the jurisdiction of each such agency or instrumentality. These rules shall require, at a minimum-(1) that real estate appraisals be performed in accordance with generally accepted appraisal standards as evidenced by the appraisal standards promulgated by the Appraisal Standards Board of the Appraisal Foundation, and (2) that such appraisals shall be written appraisals." {Lexus-Nexus Banking Law > Regulatory Agencies > U.S. Office of Thrift Supervision}

The Appraisal Standards Board of the Appraisal Foundation promulgates the appraisal standards mandated by 12 U.S.C.S. § 3339 and are called Uniform Standards and Professional Appraisal Practice.

Please stop asking your Realtors if an Appraiser is wrong because you may not agree with the Appraiser's evaluation of the property or like our initial CMAs better. Our BPOs and CMAs are not appraisal reports. They are separate tools used by separate professionals for very specific reasons and uses.

If you have an appraisal issue you should be talking to your bank and the lawyer you selected to handle the real estate transaction. The Office of Thrift Supervision encourages financial institutions to make referrals directly to state appraiser regulatory authorities when a State licensed or certified appraiser violates Uniform Standards and Professional Appraisal Practice, applicable state law, or engages in other unethical or unprofessional conduct. Examiners finding evidence of unethical or unprofessional conduct by appraisers will forward their findings and recommendations to their supervisory office for appropriate disposition and referral to the state, as necessary. Real Estate Brokers are not the correct venue for this issue. The policy and procedures of a real estate brokerage office have no bearing on the policy and procedures of an appraisal firm. Our respective operational rules will never supersede a local, state or federal law.

 

 

 

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Comment balloon 5 commentsC Tann-Starr • July 15 2010 08:10AM

Comments

Thanks for the post. There are appraisal issues coming up in many markets .

Posted by Gita Bantwal, REALTOR,ABR,CRS,SRES,GRI - Bucks County & Philadel (RE/MAX Centre Realtors) over 8 years ago

 It may not be early morning reading with Frosted Flakes, as you say, but after my EarlGrey this morning, I will re-read this post. As a matter of fact, I'm going to suggest that all of us read it ..THX!

Posted by . 4Terra Land Brokers .. 828-776-0779 Asheville NC, What's Most Important to YOU? Call(828)-776-0779 ( REAL ESTATE RESOURCES & NETWORK ) over 8 years ago

If you have a question regarding the appraisal on a property you own or are in the process of purchasing, I suggest that you hire a local certified Real Estate Appraiser to either review the appraisal in question or provide a new appraisal.

Regarding the Uniform Standards you mentioned above, you can read the entire 2010 - 2011 version of USPAP (Uniform Standards of Professional Appraisal Practice) at the link below:

USPAP

I suggest that you pay particular attention to the ETHICS RULE, the COMPETENCY RULE, and the SCOPE OF WORK RULE.

Posted by Jesse Skolkin (Independent New York State Certified Real Estate Appraiser) over 8 years ago

The disclaimers get to be a bit much after while but are so necessary.  New agents especially need to remember that they are not the authority they think they are.  cheryl

Posted by Cheryl Willis, MO Broker - Mt Vernon, Monett, Aurora, Barry & Law (RE/MAX Solutions- OZARK MISSOURI) over 8 years ago

It's interestig to see other people's perspective when they ask about points of information. Some people understand the difference while other consumers do not.

Posted by C Tann-Starr (Tann Starr & Associates, Inc.) over 8 years ago

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