53 N.J.R. 1564(a)

VOLUME 53, ISSUE 18, SEPTEMBER 20, 2021
RULE PROPOSALS

Reporter
53 N.J.R. 1564(a)
NJ - New Jersey Register  >  2021  >  SEPTEMBER  >  SEPTEMBER 20, 2021  >  RULE PROPOSALS  >  LAW AND PUBLIC SAFETY -- DIVISION OF CONSUMER AFFAIRS

Interested Persons Statement 

INTERESTED PERSONS 
Interested persons may submit comments, information or arguments concerning any of the rule proposals in this issue until the date indicated in the proposal. Submissions and any inquiries about submissions should be addressed to the agency officer specified for a particular proposal. 
The required minimum period for comment concerning a proposal is 30 days. A proposing agency may extend the 30-day comment period to accommodate public hearings or to elicit greater public response to a proposed new rule or amendment. Most notices of proposal include a 60-day comment period, in order to qualify the notice for an exception to the rulemaking calendar requirements of  N.J.S.A. 52:14B-3. An extended comment deadline will be noted in the heading of a proposal or appear in a subsequent notice in the Register. 
At the close of the period for comments, the proposing agency may thereafter adopt a proposal, without change, or with changes not in violation of the rulemaking procedures at      N.J.A.C. 1:30-6.3. The adoption becomes effective upon publication in the Register of a notice of adoption, unless otherwise indicated in the adoption notice. Promulgation in the New Jersey Register establishes a new or amended rule as an official part of the New Jersey Administrative Code. 
Agency


LAW AND PUBLIC SAFETY > DIVISION OF CONSUMER AFFAIRS

Administrative Code Citation


Proposed New Rules: N.J.A.C. 13:45A-37
Text

  Deed Procurement Services Rules
Authorized By: New Jersey Division of Consumer Affairs, Kaitlin A. Caruso, Acting Director.
Authority: N.J.S.A. 56:8-208 and 209.
Calendar Reference: See Summary below for explanation of exceptions to calendar requirement.
Proposal Number: PRN 2021-094.
Submit written comments by November 19, 2021, to:

Sean Neafsey
Acting Director
New Jersey Division of Consumer Affairs
124 Halsey Street
PO Box 45027
Newark, New Jersey 07101

or electronically at: http://www.njconsumeraffairs.gov/Proposals/Pages/default.aspx.

The agency proposal follows:
Summary
Deed procurement services are provided by private firms that charge consumers a fee to obtain one or more copies of deeds to the consumers' homes. Deed procurement services solicit consumers through written forms that may confuse or deceive consumers into believing they are obligated to use the service or are at risk if they do not respond to the solicitation within a certain period of time. On the contrary, consumers can obtain copies of deeds from the office of their county clerk for a nominal fee. Enacted January 8, 2018, P.L. 2017, c. 251, imposes requirements on deed procurement services aimed at protecting unsuspecting consumers from business practices that tend to confuse or deceive consumers into paying more for a service than they would otherwise pay to obtain a deed from the office of the county clerk.  
The Division of Consumer Affairs (Division) is proposing new rules to implement P.L. 2017, c. 251 (N.J.S.A. 56:8-208 and 209). This law makes it unlawful for a deed procurement service to solicit people, in written form, unless the written form contains, in a clear, conspicuous, and prominent manner, the address and phone number for the appropriate county clerk's office through which a person could obtain a copy of the deed, as well as the fee that is charged to obtain a copy from the county clerk. Under the proposed new rules, the solicitation forms used by a deed procurement service are to include, at the top of the first page of the form or at the top of the communication if not in printed form, a statement, in boldface font that is larger than all other font used in the solicitation: 1. that the communication is an advertisement; 2. that individuals can obtain a copy of a deed from the office of the county clerk; 3. what the address, website, and phone number for the county clerk are; and 4. what the fee to be charged by the county clerk would be. The Division believes the proposed new rules are consistent with the Legislature's intent to protect consumers against potentially deceptive business practices and to present information on the options available to the public when they are seeking to receive a copy of a deed.  
The Division is proposing a new subchapter, N.J.A.C. 13:45A-37, to effectuate the provisions of N.J.S.A. 56:8-208 and 209. Proposed new N.J.A.C. 13:45A-37.1 defines "deed" and "deed procurement service," incorporating definitions from the statute. Proposed new N.J.A.C. 13:45A-37.1 also defines "'written form of communication' or 'communication'" to clarify that written and electronic forms of communication are covered by the subchapter.  
Proposed new N.J.A.C. 13:45A-37.2 establishes the specific content that a written form of communication used by a deed procurement service as a solicitation for business must include. This new rule integrates statutory requirements and additional provisions the Division believes are necessary to ensure adequate consumer protection and to achieve the Legislature's intent. Specifically, proposed new N.J.A.C. 13:45A-37.2(a) sets forth that specific information is to be included in a statement at the top of the first page of the written form of communication in boldface font larger than all other font in the form, in order to ensure the information is clearly and prominently displayed. Proposed new N.J.A.C. 13:45A-37.2(a)1 and 2 require a notice that the form represents an advertisement and a statement that a deed may be obtained at the office of the county clerk. The Division believes these provisions are necessary to ensure consumers are not deceived into thinking that the communication represents a matter that they must respond to or into thinking that a service is the only manner by which they can obtain a copy of a deed. Proposed new N.J.A.C. 13:45A-37.2(a)3 and 4 require the address, website, and phone number for the clerk of the county in which the consumer receiving the communication resides and requires the fee charged for copies of deeds to be posted. These two provisions incorporate the requirements at N.J.S.A. 56:8-209.  
New N.J.A.C. 13:45A-37.2(b) requires that the information listed at (a)1 through 4 is to be in boldface type and in font larger than all other font used in the written form of communication, and in a color clearly distinguishable from the surrounding background. This is to ensure that the required statement is visible to consumers and provides the protection the law calls for.  
New N.J.A.C. 13:45A-37.2(c) clarifies that a written form of communication cannot wrongfully imply an association with a department or agency of the Federal Government or this State, or any of its political subdivisions, or otherwise violate N.J.S.A. 56:8-2.1.  
New N.J.A.C. 13:45A-37.2(d) restricts use of certain language in the written form of communication and accompanying documentation that indicates a payment due date or that action in response to the solicitation is required by a certain period to obtain a service or benefit.  
[page=1565] New N.J.A.C. 13:45A-37.2(e) provides that a copy of a written form of communication and accompanying documentation to be used by a deed procurement service as a solicitation for business must be submitted to the office of the county clerk in the county in which the communication will be distributed at least 15 days before the communication is sent out in the county to solicit the public. This requirement incorporates the provisions of N.J.S.A. 56:8-209.  
The Division has determined that the comment period for this proposal shall be 60 days; therefore pursuant to N.J.A.C. 1:30-3.3(a)5, this proposal is excepted from the rulemaking calendar requirement.  
Social Impact  
The proposed new rules are anticipated to have a positive social impact on consumers, as the rules ensure that consumers will be advised that the written form of communication they receive is an advertisement, not a communication sanctioned by a government agency to which they must respond; and that consumers may obtain a copy of a deed from the county clerk's office for a nominal fee. Additionally, the proposed new rules are anticipated to have a positive social impact on consumers by preventing deed procurement services from employing practices that tend to confuse or deceive consumers.  
Economic Impact  
The proposed new rules will have an economic impact on all deed procurement services that conduct business in New Jersey. The entities will have to update all written forms of communication used as solicitations to include the required information. The Division anticipates that the proposed new rules will have no direct financial impact on consumers, but may indirectly result in some consumers deciding to not pay deed procurement services, resulting in an economic benefit to those consumers.  
Federal Standards Statement  
A Federal standards analysis is not required because the proposed new rules are subject to State statutory requirements and are not subject to any Federal requirements.  
Jobs Impact  
The proposed new rules may indirectly result in some consumers deciding not to utilize deed procurement services, which may result in the reduction of personnel for deed procurement services businesses. While the proposed new rules may indirectly result in the loss of jobs in the deed procurement services industry, any attempt to predict the impact of the proposed new rules upon the number of jobs would be speculative.  
Agriculture Industry Impact  
The Division does not anticipate that the proposed new rules will have any impact on the agriculture industry in the State.  
Regulatory Flexibility Analysis  
If, for purposes of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., deed procurement services are considered "small businesses," then the following analysis applies.  
The proposed new rules will require all deed procurement services soliciting business in New Jersey to include specific information on any written form of communication used to solicit business. Deed procurement services will likely incur some fees and incidental costs associated with updating their documents and other forms of communication that will vary according to the size of the business. The proposed new rules require all deed procurement services to submit a copy of the written form of communication and accompanying documentation to a county clerk's office at least 15 days before the deed procurement service sends the communication to any resident of that county.  
The Division believes that no professional services are likely to be needed to comply with the proposed new rules. The proposed new rules do not impose any reporting or recordkeeping requirements. The Division believes that the proposed new rules are necessary to promote and protect the public welfare; thus, the Division believes that the proposed new rules must be uniformly applied to all deed procurement services and no exemptions are provided based upon size of the business.  
Housing Affordability Impact Analysis  
The proposed new rules will have an insignificant impact on the affordability of housing in New Jersey and there is an extreme unlikelihood that the new rules would evoke a change in the average costs associated with housing because the proposed new rules concern the written forms of communication used by deed procurement services to solicit business.  
Smart Growth Development Impact Analysis  
The proposed new rules will have an insignificant impact on smart growth and there is an extreme unlikelihood that the new rules would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan in New Jersey because the proposed new rules concern the written forms of communication used by deed procurement services.  
Racial and Ethnic Community Criminal Justice and Public Safety Impact  
The proposed new rules will have an insignificant impact on pretrial detention, sentencing, probation, or parole policies concerning juveniles and adults in New Jersey because the proposal concerns written forms of communication used by deed procurement services to solicit business.  
Full text of the proposed new rules follows:  
SUBCHAPTER 37.  DEED PROCUREMENT SERVICES  
13:45A-37.1  Definitions  
The following words and terms, as used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:  
"Deed" means a written instrument entitled to be recorded in the office of a county recording officer that purports to convey or transfer title to a freehold interest in any lands, tenements, or other realty in this State by way of grant or bargain and sale thereof from the named grantor to the named grantee. A leasehold interest for 99 years or more or a proprietary lease of a cooperative unit and any assignment of a proprietary lease of a cooperative unit, shall be treated as a "freehold" for the purpose of N.J.S.A. 56:8-208 and 209 and this chapter. Instruments providing for common driveways; for exchanges of easements or rights-of-way; for revocable licenses to use, adjust, or to clear defects of or clouds on title; to provide for utility service lines, such as drainage, sewerage, water, electric, telephone, or other such service lines; or to quitclaim possible outstanding interests, shall not be "deeds" for the purposes of N.J.S.A. 56:8-208 and 209 or this chapter.  
"Deed procurement service" means the provision by a non-governmental entity of one or more copies of deeds for lands, tenements, or other realty in this State to a property owner, for a fee in excess of the amount authorized pursuant to Title 22A of the New Jersey Statutes that the county clerk's office assesses for providing copies of deeds, and not in relation to the transfer or sale of, or the mortgage origination, mortgage servicing, mortgage refinancing, property tax servicing, or other action initiated by or on behalf of the owner with respect to, such lands, tenements, or realty.  
"Written form of communication" or "communication" means a written or electronic communication used by a deed procurement service in order to solicit business.  
13:45A-37.2  Requirements for written forms of communication used to solicit business  
(a) Any written form of communication used by a deed procurement service in order to solicit business shall include the following:  
1. A statement that the communication is an advertisement;  
2. A statement that deeds also may be obtained at the office of the county clerk;  
3. The address, website, and phone number for the county clerk of the county in which the consumer receiving the solicitation resides; and  
4. The fee that is charged by the county clerk for copies of deeds.  
(b) The information required to be included in a written form of communication pursuant to (a) above shall be located at the top of the first page of the written form, or at the top of any electronic solicitation or other form of written communication, and shall be in a boldface type larger than [page=1566] all other text contained in the communication and in a color clearly distinguishable from the surrounding background.  
(c) The information required to be included in a written form of communication pursuant to (a) above shall not wrongfully imply association with any department or agency of the Federal government or of this State or any of its political subdivisions, or otherwise violates N.J.S.A. 56:8-2.1.  
(d) The written form of communication and any accompanying documentation, including packaging, shall not specify a date or time period when payment to the deed procurement service is due, and shall not include any deceptive or misleading language including, but not limited to, the terms "due date," "respond by," "urgent," or other language that would lead a recipient of the communication to believe action must be taken within a certain period to obtain a service or benefit.  
(e) A copy of any written form of communication and all accompanying documentation, including packaging, used by a deed procurement service as a solicitation for business is to be submitted to the relevant county clerk's office at least 15 days before the procurement service sends the communication to any resident of that county.