When an individual makes an offer on a home, their real estate agent will most likely have them write an offer letter that specifies the terms of the sale. This offer letter will state how much money the potential buyer is willing to pay for the home as well as any contingencies or conditions that have to be met in order for the sale to go through.
One contingency that is typically included in the officer is that the buyer puts their funds into a real estate trust fund account or escrow account. This means that, instead of the seller receiving the buyer’s earnest money deposit directly, the buyer deposits that money into an escrow account held by a neutral third party, typically a title company or a real estate broker.
This process protects the funds in the event that there are any problems with the title or if the seller backs out of the deal altogether. In some instances, the real estate broker will take the buyer’s funds and deposit them into the real estate broker’s trust account.
Although brokers and escrow companies are familiar with handling real estate transactions, it is important to know who is managing the money that is in escrow.
Who Manages Real Estate Trust Funds?
The majority of brokers set up a trust fund account for their clients and are responsible for managing the money that is in that account. The broker acts as the trustee.
This means that they take on the responsibility for any funds that are given or received from either of the parties involved in a pending real estate transaction. As the trustee, the broker is responsible for managing the property that is in the trust as well as for handling all of the financial transactions that are related to the trust.
The broker has to keep accurate records of all of the transactions and holdings that are in the trust, as well as report any changes in the status of the trust to the beneficiaries.
What Are the Benefits of a Real Estate Trust Fund?
When an individual buys or sells real estate, the agreed-upon commission is typically placed in a trust fund account that is separate from the broker’s business account. There are many states that require this transaction to be completed within seven days.
During this time, the individual’s money is placed into a bank account that is federally insured for up to $100,000 by the Federal Deposit Insurance Corporation (FDIC). The purpose of a trust account in real estate is to protect each of the parties involved in the transaction because it ensures that all of the monies are securely held until they are distributed at closing or settlement.
When the funds are held by a third party, such as a broker or title company, during the transaction, there may be additional fees that are charged for those services. Another benefit of using a trust fund is closing or settlement because it protects all of the parties involved in the transaction. It ensures that each party has their own monies secured prior to signing documents.
This way, the parties know exactly how much money they can expect and close, and they can plan their finances accordingly. This process also reduces the risk that one of the parties will receive their money before the other.
Having a real estate trust fund provides both parties with peace of mind, knowing that their affairs are being handled securely and responsibly. This process also helps to avoid legal complications that may arise if the funds are handled less carefully.
How Do I Open a Real Estate Trust Fund Account?
An individual may want to open a real estate trust fund account. If so, they should take their trust documents to a financial institution, such as a bank, and open a trust fund bank account in a name that is the same as the trust. The individual will need to provide the names and contact information of any trustees.
The individual can either pay into the trust over time or deposit a lump sum.
What Happens if the Broker Uses the Client’s Money for Personal Purposes?
A client’s funds should be protected during both the escrow process and after closing is complete. Much of this responsibility falls upon the real estate broker who was chosen by the parties for their transaction.
Before choosing a broker or other firm to close a real estate transaction, it is important to know how the state views the commingling of funds. An individual can consult with an attorney for more information, and more information will also be provided below.
There are several states that have laws that require escrows to segregate client funds from other assets that are held by the escrow holder. If a real estate broker uses a buyer’s money for their own personal purposes, they may be charged with embezzlement.
Embezzlement is the act of taking funds that have been entrusted to an individual for a particular purpose and using those funds or proceeds for the individual’s own personal gain. This is a serious crime, and an individual may face severe penalties if they are convicted.
If an escrow company or a broker uses a buyer’s money for personal purposes, they may be held liable for damages. They may also be held liable for breach of contract or even theft.
The buyer whose funds were misused may also be able to sue the escrow company for negligence. In addition, the broker involved may be suspended or even lose their license.
What Is Commingling?
In general, commingling refers to mixing personal assets with client funds so that it is difficult, or even impossible, to separate the client’s funds from the other assets. This has been a major concern in the closing industry for many years.
In other situations, commingling refers to when escrow funds are deposited into a single account and are used to fund multiple transactions. This can be a risky thing to do because it is difficult to track where the funds are going. Additionally, it may be easy for an individual to take the funds for their own use.
Because of this, it may be a good idea for an individual to use a real estate broker who separates funds into individual accounts for each transaction. Commingling of funds may create legal issues, especially if there is a disagreement regarding how the funds should be divided.
As a result, it is important the parties have an agreement in place before they deposit any money into an escrow account.
Do I Need an Attorney?
If you have any issues, questions, or concerns related to real estate trust fund accounts or if you believe that your broker has engaged in the unauthorized use of trust funds for personal use or has otherwise embezzled money from you, it is important to consult with a real estate lawyer.
Your lawyer will have knowledge about the laws that govern real estate trust funds in your state and real estate trust account requirements and will be able to advise you on whether you have a cause of action. If the broker is also licensed in your state, you may be able to file a complaint with the state licensing board.
It is important that you keep any records that would support your suspicions in case your dispute goes to trial. Having an attorney’s help will ensure that you have the best chance possible at compensation for your losses.
