A lot of Legal Hotline questions focus on escrow deposits, and a significant number of those questions come from listing agents who are upset that they haven't received proof that the funds actually made it into an escrow account – or even just a simple notification that the buyers did indeed deposit money by the dates stated in the contract.
Most common escrow deposit issues
Proof of deposit
No law requires an agent to send a copy of an escrow check (or wire transfer) to prove that an escrow deposit was made. Furthermore, a copy of a check doesn't do much good. It proves only that a check was written – not that it was given to the escrow agent in accordance with the contract.
Verification of deposit
The requirement for verification of the escrow depends on who chooses the escrow agent, the buyer or the seller. If the buyer chooses the escrow agent and it is a title company or an attorney, Section 61J2 of the Florida Administrative Code says the following rules apply:
- If the buyer chooses a title company or attorney as the escrow agent, the licensee who prepares the contract must indicate the name, address and telephone number of the selected title company or attorney on the contract.
- Within 10 business days after each deposit is due, the broker representing the buyer must make a written request to the title company or attorney, asking the escrow agent to verify receipt of the buyer's deposit.
- Then, within 10 business days of the date that request was sent, the broker for the buyer must provide the seller's broker with a copy of the confirmation of receipt from the escrow agent.
- If there is no response from the title company or attorney, the buyer's broker must inform the listing broker that they did not receive verification from the escrow agent.
Note that this rule only applies if:
1.The buyer chooses the escrow agent
2.The escrow agent is an attorney or title company
If the seller picks a title company or attorney as the escrow agent, the above rules do not apply and there is no verification requirement.
The listing broker can confirm receipt by contacting the escrow agent directly after each deposit is due according to the dates in the contract. If the buyer chooses a title company or attorney as escrow agent, the buyer's broker must comply with Florida Administrative Code and provide a response to the listing broker.
If a broker – not a title company or attorney – is holding the escrow, then the two brokers involved in the transaction can confirm receipt upon request, but there is no procedure for verification required by law.
Understanding the role of the agents with respect to escrow verification is key to avoiding potential unnecessary conflict.