Our escrow clearance division has been very instrumental assisting attorneys who represent the seller in a property transfer transactions, either by eliminating an escrow altogether utilizing our escrow-FREE-closing™ or by helping retrieve and disburse funds, deposited due to outstanding unpaid judgments and ECB violations, that have otherwise been considered forfeited or lost. Since this process may take anywhere between 2-8 months to resolve, we advise our clients to specify in the escrow agreement that these judgments should not be paid unless the escrow agent is notified in writing to do so. The process involves submitting a stay of default, and if granted, appear at a hearing at the Environmental Control Board.
Q. What’s an escrow?
A. An escrow is a legal arrangement to help parties perform their contracts and avoid disagreements. The escrow agreement has three parties: a “depositor”, an “escrow agent” and a “beneficiary”.
In the typical escrow, the depositor is required to entrust money or property with an escrow agent. The escrow agent holds the escrow deposit until it can be released to the beneficiary upon the happening of some future event, or the performance of some condition.
A common example involves the down payment in the purchase and sale of a residence, condominium or cooperative. The contract frequently requires that the buyer’s down payment be paid to the seller’s lawyer, in escrow, or to a real estate broker, pending the title closing.
In this escrow example, the buyer is the depositor, and the seller is the beneficiary. The seller’s lawyer or real estate broker is the escrow agent, who undertakes to safeguard the down payment in a special bank account until the contract has been performed, or is canceled by the buyer and seller.
If the purchase goes forward as planned, the escrow agent will release the down payment to the seller at the title closing. If the buyer and seller agree to cancel their contract, the escrow agent is usually required to return the down payment to the buyer.
Q. What are other examples of escrows?
A. Other escrows include settlements in personal injury and other court cases; agreements to distribute property in matrimonial actions; and, in the bulk sale of business assets, escrows to insure that taxes and business debts will be paid.
There are also consumer escrows that are regulated by special state laws. Examples include escrow accounts for rent security deposits; real property tax escrow accounts required by mortgage lenders; deposits paid to builders constructing new homes; down payments for interests in homeowners associations and time-share projects; advance fees paid to automobile brokers; membership fees paid to health clubs and licensed campgrounds; and entrance fees and deposits paid on life care community contracts.
Q. Are written escrow agreements required?
A. Not in all cases. But someone considering an escrow transaction should insist that the escrow agreement be in writing, and be reviewed by a lawyer. Every escrow agreement should contain provisions which set forth:
- the names and addresses of the depositor, the escrow agent and the beneficiary;
- the amount of the escrow deposit;
- the name and address of the bank where escrow money will be deposited, and the title and number of the bank account;
- whether the escrow agent is required to use an interest-bearing account, and how the interest earned on the deposit will be distributed;
- the conditions that must occur or be performed before the escrow agent can release the escrow fund; time limits for the performance of these conditions;
- the names and addresses of all persons who will be paid the escrow fund; and the duties of the escrow agent in the event the conditions of the escrow agreement cannot be met.
It’s also a good practice for the parties, or their attorneys, to require a copy of the written agreement, and periodic status reports from the escrow agent regarding the current balance in the escrow account, if any, and its location.
Q. Who does an escrow agent work for?
A. A person who serves as an escrow agent is a fiduciary, with duties to all parties who have an interest in the escrow property. The most important duty is to safeguard the escrow property. If it’s money, it must be deposited in a special bank account that’s separate from the escrow agent’s personal and business accounts.
An escrow agent should provide the parties with a receipt for the escrow property, a copy of the escrow agreement and keep complete and accurate records. Depositors and beneficiaries have a right to a full accounting of the escrow agent’s management of the escrow property. An escrow agent has the legal duty to comply strictly with the terms and conditions of the escrow agreement. Escrow property cannot be delivered to anyone, except in accordance with the provisions in the escrow agreement. An escrow agent who releases escrow property in violation of an escrow agreement is subject to money damages in a civil court action brought by any party who has suffered economic loss because of the agent’s breach of duty.
Q. Are escrow agents paid for their services?
A. Escrow agents can serve with or without compensation. If an escrow agent expects to be paid for administering an escrow account or property, the matter of fees and reimbursement of expenses should be clearly set forth in the escrow agreement.
Q. Can escrow agents assert liens against escrow property?
A. No. An escrow agent can have no claim or lien on the escrow deposit for services rendered, unless the escrow agreement provides otherwise. The escrow agent is simply a custodian of the escrow property, which must be paid out as the escrow agreement provides.
Q. Are interest-bearing accounts required for escrow deposits?
A. Not in all cases, but escrow agreements should require interest-bearing accounts when escrow funds can generate significant interest for one or more of the parties. For small and short-term escrow deposits, lawyers are permitted by state law to use so-called “IOLA Accounts”. Interest earned on these IOLA accounts is pooled and used to finance civil legal services for the poor.
If you arrange for an interest-bearing bank account, the escrow agent and bank may require a Social Security or Federal Tax Identification number for federal and state income tax purposes.
Q. Can escrow agents keep bank interest?
A. No. All interest that’s earned on an escrow deposit should be paid out in accordance with the escrow agreement, or to the party whose money generated the interest. It would be a conflict of interest for an escrow agent, as a fiduciary, to require that bank interest be treated as compensation for services rendered.
Q. If an escrow deposit is stolen, who bears the loss?
A. Unless an escrow agreement provides otherwise, the loss generally falls on the party who owned the escrow property at the time of its theft. In the case of a stolen down payment, that’s usually the buyer, who may be asked by the seller to replace the down payment before title closes. Of course, an injured party will have the right to seek money damages from the dishonest escrow agent.
Q. Are there danger signals to watch for?
A. Yes, and consumers can protect themselves against losses. A deposit of money with an escrow agent should be made by certified check, for example, and not with cash. The check should be promptly deposited in a special bank account identified in the escrow agreement. The depositor should review the endorsement on the check to make sure that the escrow agent has made the proper bank deposit. The beneficiary of an escrow agreement should be wary if an escrow agent delays in releasing escrow property. And a bounced check from an escrow agent is a signal that escrow money might have been misused. In these situations, the careful consumer will promptly consult a lawyer.
Keep in mind that since nearly every situation is different. Contact one of our trained consultants to discuss your particular issue.