How Escrow is Handled on the Purchase Contract

One important section contained on a Florida real estate purchase agreement, and one of my personal pet peeve's, is the section usually found on page one referencing the Escrow Agent.

Often we see purchase agreements being submitted where the Escrow Agent section has been left blank or a TBD has been inserted. This could be a violation of the following Rule.

Rule 61J2-14.008(2)(b) of the Florida Administrative Code. "When a deposit is placed or to be placed with a title company or an attorney, the licensee who prepared or presented the sales contract ("Licensee"), shall indicate on that contract the name, address, and telephone number of such title company or attorney." (It also doesn't hurt to include the email address).

Should the Seller have a preference for a different Escrow Agent, a change can simply be made in the form of a counter offer.

If the Escrow Agent is the broker, the agent must deliver the deposit to his/her broker by the end of the next business day from receipt and the broker must deposit the check by the end of third business day from when the broker received it from his/her associate. Likewise, if a title company or an attorney is the Escrow Agent, the Escrow Agent must place the deposit into an escrow account no later than the end of the third business day following receipt of the item to be deposited. You might remember this from your real estate licensing course.

When the Escrow Agent is a title company or an attorney and the Escrow Agent was not selected by Seller or Seller’s broker, the Buyer’s agent’s broker shall make written request within 10 business days after each deposit is due under the Contract to the Escrow Agent to provide written verification of receipt of the deposit. Within 10 business days of Buyer’s agent’s broker making such request, Buyer’s agent’s broker shall provide Seller’s broker with a copy of written verification if received or, if no verification received, written notice of such.

What happens if the Buyer doesn’t make deposits by the escrow deposit deadline contained in the Contract? The Contract states Time is of the Essence. If the Buyer fails to make payment of the Deposit, within the times specified, Seller may try to elect to recover and retain the Deposit(s). What if the Buyer made the Initial Deposit but didn’t make the Additional Deposit? Is Seller just entitled to recover the Initial Deposit for Buyer’s default? Our attorney has stated to us that the Deposit is defined as all deposits paid or agreed to be paid. Consequently, Seller may elect to recover from the Buyer the Initial Deposit paid and the Additional Deposit to be paid.

For additional information on this, visit Florida REALTORS® Magazine Know the Law

Of course should you have any questions concerning what is stated here, we suggest you communicate with your Broker and your own real estate attorney.

We are not attorneys and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.