Monday, August 22, 2016
Is Your Agent Gambling With Your Money?
1. From a seller's perspective is it better to have the buyer's escrow deposit held at the seller's title company?
2. From a buyer's perspective, is it OK for the deposit to be held at the seller's title company?
3. From an agent's perspective, is there a good reason for not holding the escrow deposit in a real estate broker's escrow account?
Answers: All three, a resounding NO
This quiz was prompted by another instance this past weekend of a seller's agent requesting that the buyer's escrow deposit be held at the seller's title company. This has become more frequent over the years as more and more brokers stopped maintaining escrow accounts because of the hassles of reconciliation and Draconian oversight. To understate, they are a big pain in the butt, but worth it for the clients' protection.
Our local Association of Realtors made a mistake last year in a revision of the MLS listing entry form and added a listing field for "Escrow Agent". It has always been customary in Florida for the seller to select the title company as they usually buy the owner's title policy for the buyer. What has not been customary is for the seller to select the holder for the buyer's escrow deposit. As soon as this field appeared, rookie and experienced agents alike began demanding that buyers hold escrow with the title company or attorney named in the "Escrow Agent" field. Some of them did this out of ignorance and lack of experience. Others wrongly assumed that it was required since it was a part of the listing.
Our MLS committee corrected the entry form two weeks ago to "Closing Company" to relieve the confusion but some agents are still dangerously requesting escrow deposits to be held by a title company. Why does it matter?
It only matter if the sale falls apart and there is a dispute over the deposit. Most title companies and attorneys will not disburse escrow deposits unless both parties have signed a release and cancellation. A buyer can cancel in good faith under the terms of the contract and be entitled to return of the deposit but if the seller refuses to sign a release and cancellation, the title company will probably not return the deposit to the buyer. From the Florida Association of Realtors :"Ask an Attorney" forum.
In most cases, a title company will require clear written instructions from both parties before releasing the deposit. If the parties can’t provide matching instructions within a reasonable period, the title company will likely deposit the funds with the local clerk of courts, and either party may then file a court case to argue why they believe they’re entitled to the deposit.
Under the same circumstances, if the money is held in a Florida real estate broker's escrow account, there is a free dispute resolution process. The broker holding escrow may request an Escrow Disbursement Order (EDO) from the Florida Real Estate Commission (FREC). They will review the facts and issue an order for disbursement of the funds based on their findings. No cost to either party. Holding escrow in a broker's escrow account is not a casual recommendation on my part. I have been involved in escrow disputes and, in every case, thankfully, the dispute was resolved for free by FREC. Agents who have not been involved in a dispute are likely to have a more cavalier attitude towards it.
Our takeaway: Barring unusual circumstances, it is always safer for the seller, the buyer and the agents involved for a buyer's escrow deposit to be held in a Florida real estate broker's escrow account. Listing agents reading this, be happy that I am willing to hold the buyer's deposit in our escrow account. You and your client are more protected. Buyers and sellers reading this, if your agent recommends the title company hold escrow deposit ask one question; "Why?"
"I wanted to be a comedian." __Kelly Slater