Final Text
18VAC135-20-180. Maintenance and management of escrow accounts.
A. Maintenance of escrow accounts.
1. If money is to be held in escrow, each firm or sole
proprietorship shall maintain in the name by which it is licensed one or more
federally insured separate escrow accounts in a federally insured depository
into which all down payments, earnest money deposits, money received upon final
settlement, application deposits as defined by § 55-248.4 of the Code of
Virginia, rental payments, rental security deposits, money advanced by a buyer
or seller for the payment of expenses in connection with the closing of real
estate transactions, money advanced by the broker's client or expended on
behalf of the client, or other escrow funds received by him or his associates
on behalf of his client or any other person shall be deposited unless all
principals to the transaction have agreed otherwise in writing. The balance in
the escrow accounts shall be sufficient at all times to account for all funds
that are designated to be held by the firm or sole proprietorship. The
principal broker shall be held responsible for these accounts, including having
signatory authority on these accounts. The supervising broker and any other
licensee with escrow account authority may be held responsible for these
accounts. All such accounts, checks and bank statements shall be labeled
"escrow" and the account(s) accounts shall be
designated as "escrow" accounts with the financial institution where
such accounts are established.
2. Funds to be deposited in the escrow account may include moneys which shall ultimately belong to the licensee, but such moneys shall be separately identified in the escrow account records and shall be paid to the firm by a check drawn on the escrow account when the funds become due to the licensee. Funds in an escrow account shall not be paid directly to the licensees of the firm. The fact that an escrow account contains money which may ultimately belong to the licensee does not constitute "commingling of funds" as set forth by subdivision C 2 of this section, provided that there are periodic withdrawals of said funds at intervals of not more than six months, and that the licensee can at all times accurately identify the total funds in that account which belong to the licensee and the firm.
3. If escrow funds are used to purchase a certificate of deposit, the pledging or hypothecation of such certificate, or the absence of the original certificate from the direct control of the principal or supervising broker, shall constitute commingling as prohibited by subdivision C 2 of this section.
4. Lease transactions: application deposits. Any application deposit as defined by § 55-248.4 of the Code of Virginia paid by a prospective tenant for the purpose of being considered as a tenant for a dwelling unit to a licensee acting on behalf of a landlord client shall be placed in escrow by the end of the fifth business banking day following approval of the rental application by the landlord unless all principals to the lease transaction have agreed otherwise in writing.
B. Disbursement of funds from escrow accounts.
1. a. Purchase transactions. Upon the ratification of a
contract, earnest money deposits and down payments received by the principal
broker or supervising broker or his associates must be placed in an escrow
account by the end of the fifth business banking day following ratification,
unless otherwise agreed to in writing by the principals to the transaction, and
shall remain in that account until the transaction has been consummated or
terminated. In the event the transaction is not consummated (nonconsummation),
the principal broker or supervising broker shall hold such funds in escrow
until (i) all principals to the transaction have agreed in writing as to their
disposition, and the funds shall be returned to the agreed upon principal
within 20 days of the agreement, or (ii) a court of competent
jurisdiction orders such disbursement of the funds, or (iii) the funds
are successfully interpleaded into a court of competent jurisdiction pursuant
to this section, or (iv) the broker can pay the funds to the principal to the
transaction who is entitled to receive them in accordance with the clear and
explicit terms of the contract which that established the
deposit. In the latter event, prior to disbursement, the broker shall give
written notice to the principal to the transaction not to receive the deposit
by either (i) hand delivery receipted for by the addressee, or (ii) by
certified mail return receipt requested, with a copy to the other party, that
this payment will be made unless a written protest from that principal to the
transaction is received by the broker within 30 days of the hand delivery or
mailing, as appropriate, of that notice. If the notice is sent within 90 days
of the date of nonconsummation, the broker may send the notice by receiptable
email or facsimile if such email address or facsimile information is set forth
in the contract or otherwise provided by the recipient. In all events, the
broker may send the notice to the notice address, if any, set forth in the
contract. If the contract does not contain a notice address and the broker does
not have another address for the recipient of the notice, the broker may send
it to the last known address of the recipient. No broker shall be required to
make a determination as to the party entitled to receive the earnest money
deposit. The broker shall not be deemed to violate any obligation to any client
by virtue of making such a determination. A broker who has carried out the
above procedure shall be construed to have fulfilled the requirements of this
chapter.
A principal broker or supervising broker holding escrow funds for a principal to the transaction may seek to have a court of competent jurisdiction take custody of disputed or unclaimed escrow funds via an interpleader action pursuant to § 16.1-77 of the Code of Virginia.
If a principal broker or supervising broker is holding escrow
funds for the owner of real property and such property is foreclosed upon by
a lender, the principal broker or supervising broker shall have the right
to file an interpleader action pursuant to § 16.1-77 of the Code of Virginia.
If there is in effect at the date of the foreclosure sale a real estate purchase contract to buy the property foreclosed upon and the real estate purchase contract provides that the earnest money deposit held in escrow by a firm or sole proprietorship shall be paid to a principal to the contract in the event of a termination of the real estate purchase contract, the foreclosure shall be deemed a termination of the real estate purchase contract, and the principal broker or supervising broker may, absent any default on the part of the purchaser, disburse the earnest money deposit to the purchaser pursuant to such provisions of the real estate purchase contract without further consent from, or notice to, the principals.
b. Lease transactions: security deposits. Any security deposit
held by a firm or sole proprietorship shall be placed in an escrow account by
the end of the fifth business banking day following receipt, unless otherwise
agreed to in writing by the principals to the transaction. Each such security
deposit shall be treated in accordance with the security deposit provisions of
the Virginia Residential Landlord and Tenant Act, Chapter 13.2 (§ 55-248.2 et
seq.) of Title 55 of the Code of Virginia, unless exempted therefrom, in which
case the terms of the lease or other applicable law shall control.
Notwithstanding anything in this section to the contrary, unless the landlord
has otherwise become entitled to receive the security deposit or a portion
thereof, the security deposit shall not be removed from an escrow account
required by the lease without the written consent of the tenant. If there is in
effect at the date of the foreclosure sale a tenant in a residential dwelling
unit foreclosed upon and the landlord is holding a security deposit of the
tenant, the landlord shall handle the security deposit in accordance with
applicable law, which requires the holder of the landlord's interest in the
dwelling unit at the time of termination of tenancy to return any security
deposit and any accrued interest that is duly owed to the tenant, whether or
not such security deposit is transferred with the landlord's interest by law or
equity, and regardless of any contractual agreements between the original
landlord and his successors in interest. Nothing herein in this
section shall be construed to prevent the landlord from making lawful
deductions from the security deposit in accordance with applicable law.
c. Lease transactions: prepaid rent or escrow fund advances. Unless otherwise agreed in writing by all principals to the transaction, all prepaid rent and other money paid to the licensee in connection with the lease shall be placed in an escrow account by the end of the fifth business banking day following receipt and remain in that account until paid in accordance with the terms of the lease and the property management agreement, as applicable, except the prepaid rent, which shall be treated in accordance with the prepaid rent provision of the Virginia Residential Landlord and Tenant Act, Chapter 13.2 (§ 55-248.2 et seq.) of Title 55 of the Code of Virginia.
d. Lease transactions: rent payments. If there is in effect at the date of the foreclosure sale a tenant in a residential dwelling unit foreclosed upon and the rent is paid to a licensee acting on behalf of the landlord pursuant to a properly executed property management agreement, the licensee may collect the rent in accordance with § 54.1-2108.1 A 4 of the Code of Virginia.
2. a. Purchase transactions. Unless otherwise agreed in writing by all principals to the transaction, a licensee shall not be entitled to any part of the earnest money deposit or to any other money paid to the licensee in connection with any real estate transaction as part of the licensee's commission until the transaction has been consummated.
b. Lease transactions. Unless otherwise agreed in writing by the principals to the lease or property management agreement, as applicable, a licensee shall not be entitled to any part of the security deposit or to any other money paid to the licensee in connection with any real estate lease as part of the licensee's commission except in accordance with the terms of the lease or the property management agreement, as applicable. Notwithstanding anything in this section to the contrary, unless the landlord has otherwise become entitled to receive the security deposit or a portion thereof, the security deposit shall not be removed from an escrow account required by the lease without the written consent of the tenant. Except in the event of a foreclosure, if a licensee elects to terminate the property management agreement with the landlord, the licensee may transfer any funds held in escrow on behalf of the landlord in accordance with § 54.1-2108.1 B 5 of the Code of Virginia. If there is in effect at the date of the foreclosure sale a written property management agreement between the licensee and the landlord, the property management agreement shall continue in accordance with § 54.1-2108.1 A 5 of the Code of Virginia.
3. On funds placed in an account bearing interest, written disclosure in the contract of sale or lease at the time of contract or lease writing shall be made to the principals to the transaction regarding the disbursement of interest.
4. A licensee shall not disburse or cause to be disbursed moneys from an escrow or property management escrow account unless sufficient money is on deposit in that account to the credit of the individual client or property involved.
5. Unless otherwise agreed in writing by all principals to the transaction, expenses incidental to closing a transaction (e.g., fees for appraisal, insurance, credit report, etc.) shall not be deducted from a deposit or down payment.
C. Actions including improper maintenance of escrow funds include:
1. Accepting any note, nonnegotiable instrument, or anything of value not readily negotiable, as a deposit on a contract, offer to purchase, or lease, without acknowledging its acceptance in the agreement;
2. Commingling the funds of any person by a principal or supervising broker or his employees or associates or any licensee with his own funds, or those of his corporation, firm, or association;
3. Failure to deposit escrow funds in an account or accounts designated to receive only such funds as required by subdivision A 1 of this section;
4. Failure to have sufficient balances in an escrow account or accounts at all times for all funds that are designated to be held by the firm or sole proprietorship as required by this chapter; and
5. Failing, as principal broker, to report to the board within three business days instances where the principal broker reasonably believes the improper conduct of a licensee, independent contractor, or employee has caused noncompliance with this section.