A detailed look at the state's regulations regarding escrow, including timeframes, disputes, disbursements and more.
An associate or broker-associate must deliver the escrow deposit to the broker by the end of the next business day after receiving the deposit . (Rule 61J2-14.009, Florida Administrative Code)
T he broker must deposit the funds in the escrow account “immediately,” which is defined as within three business days. Saturdays, Sundays and legal holidays are not considered business days. ( Rule 61J2- 14.008(3), Florida Administrativ e Code)
A broker must place the escrow funds into a bank, savings and loan association, trust company, credit union, or title company having trust powers, in an insured escrow or trust account. ( Rule 61J2-14.010 (1) , Florida Administrative Code, and Section 475.25(1)(k), Florida Statutes)
At least one broker must be a signatory on all escrow accounts ( Rule 61J2-14.010(1), Florida Administrative Code.)
The Florida Real Estate Commission (FREC) does not have a parallel rule about o perating accounts.
A broker may place and maintain up to $5,000 of personal or broker funds in the broker’s property management escrow account and up to $1,000 of personal or brokerage funds in the broker’s sales escrow account. (Rule 61J2-14.010(2) and Se ction 475.25(1)(k), Florida Statutes).
If a brokerage maintains an escrow account, brokers must complete a monthly reconciliation statement . An accountant can prepare the statement, but the broker must still review, sign and date it. The broker is ultimately responsible for the funds in escrow. (Rule 61J2-14.012 (2) , Florida Administrative Code)
The minimum information a monthly reconciliation statement must contain:
(R ule 61J2-14.012(2), Florida Administrat ive Code)
There is no requirement to send these statements to FREC , but brokers should have easy access to these statements in the event the office is audited .
Florida Realtors has created forms to help members prepare this statement:
A real estate broker must notify the Florida Real Estate Commission (FREC) within 15 business days after receiving conflicting demands on trust funds maintained in the broker’s account. This provision does not apply to funds that are held by title companies or attorneys . (Section 61J2-10.032(1)(a), Florida Administrative Code)
In most cases, a title company will require clear written instructions from both partie s before releasing the dep osit. 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 (interplead the funds) , and either party may then take legal action to argue why they belie ve they’re entitled to the deposit.
An escrow dispute, in itself, does not prevent the seller from advertising or selling the property.
If an escrow dispute is for an amount exceeding $50,000 , FREC will not issue an Escrow Disbursement Orde r. In this cas e, you should deposit the funds with the local clerk of courts (interplead the funds) . Or, with the parties’ consent, you could also submit the matter to either mediation or arbitration.
If a broker requests an Escrow Disbursement Order and the dispute subsequently settles or goes to court before the order is issued, the broker must notify FREC in writing within 10 business days of this event. ( Rule 61J2-10.032(2)(c), Florida Administrative Code )
If a contract falls through and the escrow is in dispute but the broker is not holding the escrow, the broker is not required to notify FREC about the dispute.
Brokers should disburse escrow according to parties’ instructions. If a non-party puts the deposit down, a brokerage should consider an office policy to disclose the instructions to the non-party.
Even if a contract specifies that if a transaction doesn’t go through and the deposit should be refunded to the buyer, a title comp any may require a fully executed release and cancellation before giving the deposit to the buyer. This is probably based on the title company’s internal policy not to release escrowed funds unless it receives a release and cancellation signed by both buyer and seller. This is not related to the terms of the contract between buyer and seller. Although this is a common policy, either party may ask the title company if there are other circumstances under which it would be willing to disburse the deposit.
A b roker may be desi gnated by both the buyer and the seller to receive the interest on the escrow deposit for the sale and purchase of real property . However, the broker must precisely follow an approved disbursement procedure . ( Rule 61J2-14.014, Florida Administrative Code )
A real estate brokerage company is not legally required to have an escrow account if the brokerage is not maintaining any escrow funds.
A broker can place escrow funds in an interest-bearing account, but only with written permission of the parties to the s ale and purchase transaction. The written permission must specify who will receive the interest and when the earned interest must be disbursed. T he funds must be maintained in a Florida banki ng institution. (Rule 61J2-14.014 (1) , Florida Administrative Code)
A broker who serves as a property manager and collects rent checks on behalf of a landlord, payable to the brokerage, must deposit those checks into an escrow account. It is best practice to establish an agreement with the landlord that once these checks have cleared, the broker can transfer the amount of their commission and/or property management fee to their operating account.
Whenever a broker receives funds in connection with a real estate transaction belonging to someone else , the broker must deposit and hold the money in an escrow account until receiving proper authorization from the owner for release. For example, if a seller leaves funds for home m aintenance while out of town.
T he choice of an escrow agent or holder is a negotiable item between a prospective buyer and a seller, like any other contract term or condition.
If someone suspects that a broker is stealing money from the brokerage escrow account, they should immediately report this to the Department of Business and Professional Regulation (DBPR). The DBPR has the ability, under Section 475.5017, Florida Statutes, to go to circuit court for immediate injunctive relief. Appropriate civil action may be brought by the DBPR in circuit court as well. In any such action, an order or judgment may be entered awarding whatever temporary or permanent injunction is deemed proper.
In addition, the court shall have power and jurisdiction to impound and appoint one or more receivers for the property and business of the broker, including books, papers, documents, and records pertaining to them or to whatever the court may deem reasonably necessary to prevent viola tions of t he law or injury to the public.
I f a title company or an attorney is maintaining the earnest money deposit, the sale and purchase contract must include the name, address and telephone number of the title company or the attorney. Both the Florida Realtors and the Florida Realtors/Florida Bar contract forms provide designated space to provide this information . ( Rule 61J2- 14 .008(2)(b), Florida Administrative Code)