Recently there has been much discussion among members of the Association regarding the role of a real estate licensee in a tax appeal before a Board of Review. Part of the recent conversation was due to a debate before the Lake County Board of Review and a decision by the Lake County Board of Review to provide that during the appeal of taxes before the Board of Review the homeowner could either represent themself or be represented by an Illinois licensed attorney. Members of the Illinois Association of REALTORS® (“IAR”) have been vocal in regards to the role of a REALTOR® in the tax appeal process before the Board of Review. This article is intended to address some of those issues that have been the subject of much discussion.
Any analysis of the right of a REALTOR® to appear before a Board of Review in connection with a tax appeal begins with the Illinois Supreme Court decision of In Re Yamaguchi. This was a decision of the Illinois Supreme Court in 1987. This particular case is a bit convoluted from the factual standpoint. In fact, the case involves consideration by the Illinois Supreme Court of the question of whether an attorney should be disciplined for aiding a non-lawyer in the unauthorized practice of law. In fact, the court ultimately did discipline the lawyer for aiding a non-lawyer, a real estate brokerage licensee, in the unauthorized practice of law.
The particular language of the decision which is relevant to the consideration of a real estate brokerage licensee’s participation in an appeal before the Board of Review is as follows:
“There can be no doubt that Ebert’s conduct (which respondent condoned and furthered) was, in fact, the unauthorized practice of law. Although we have previously permitted, in Chicago Bar Association v. Quinlan & Tyson, Inc. (1966) (citation omitted), a real estate broker to fill in factual data on certain form contracts, the completion of a valuation complaint is quite unlike the completion of a form contract. The insertions which Ebert was making on the form valuation complaints did not involve mere factual data. Rather, Ebert, without the supervision of an attorney, was setting forth on the valuation complaints the results of his legal analysis of the facts which he deemed justified a tax reevaluation. Further, after Ebert or his secretary filed those valuation complaints, Ebert was appearing for oral argument before the tax board. Both the unsupervised completion of the complaint and the appearance before the administrative tribunal constitute the unauthorized practice of law.”
This decision of the Illinois Supreme Court seems straightforward in terms of indicating that certain practices before the Board of Review by a real estate brokerage licensee constitute the unauthorized practice of law. However, some refer to a United States District Court decision in 2010 entitled Santana v. Cook County Board of Review as a case indicating to the contrary. However, upon review of the Santana decision, that decision does not appear to be inconsistent with the Yamaguchi decision. The Santana case involved a matter in which a prior employee of the Cook County Board of Review was suing the Board of Review.
One of the defenses raised by the Board of Review was that Santana could not pursue his claim because as a matter of law he was engaged in activities that constituted the unauthorized practice of law and that Santana was a non-attorney. However, as the court pointed out in that case, Santana was only a consultant assisting taxpayers with property tax review paperwork. Santana never assisted taxpayers on the Board of Review premises nor did he appear on behalf of a taxpayer before the Board of Review. In fact, the court in the Santana decision finds that the conduct of Santana, which is described as “advising and assisting taxpayers with Board appeals” was distinguishable from that conduct which the Yamaguchi court found to be a problem which is described as “a non-attorney’s completion and submission of appeal complaints on taxpayers’ behalf.”
In analyzing and comparing these two cases it seems clear that the Illinois Supreme Court has determined certain conduct constitutes the unauthorized practice of law. That conduct is appearing before the Board of Review to advocate on a taxpayer’s behalf and preparation of a valuation complaint on behalf of the taxpayer. However, the Yamaguchi court certainly did not indicate that a non-attorney had no role before the Board of Review. The Santana case tends to describe the kind of role that a non-attorney could have before a Board of Review or in assisting taxpayers. That role is one of a consultant and potentially that of a witness on behalf of a taxpayer.
Members of IAR have, by virtue of their training and experience, a skill set that allows them to provide information and opinions concerning the value of property and whether real estate taxes are too high compared to that value or the real estate taxes on similar types of property. This places the licensee in a position of being able to assist taxpayers by providing information regarding values of comparable properties, providing information concerning the real estate taxes of comparable properties and providing general information to real estate taxpayers about how the real estate tax appeal process works.
The licensee is also in a position to be able to testify before a Board of Review, should the real estate taxpayer choose to have the licensee testify. This role is different from representing a real estate taxpayer before the Board of Review or advocating on behalf of the taxpayer before the Board of Review. Providing this type of information as a consultant or appearing as an expert witness would not appear to constitute the practice of law under existing Illinois case law. In addition, these are services for which a licensee can charge a fee for their expertise. The key is not to participate in those activities which have been prescribed as constituting the practice of law.
The role of the real estate brokerage licensee in the tax appeal process before the Board of Review is necessarily limited by existing case law in Illinois regarding what constitutes the unauthorized practice of law. However, this does not preclude a member of IAR from participating in the tax appeal process, albeit in a somewhat limited fashion, and to benefit economically from that assistance while providing a service to their clients and members of the community.