Virginia Law

A. Maintenance of escrow accounts.

1. General escrow account requirements. If money is to be held in escrow, each firm or sole proprietorship must maintain one or more federally insured escrow accounts into which all funds received in connection with a real estate transaction must be deposited.

a. The escrow account must be in the name by which the firm or sole proprietorship is licensed.

b. The principal broker will be held responsible for these accounts, including having signatory authority on these accounts.

c. The supervising broker and any other licensee with signatory authority may be held responsible for these accounts.

d. All such accounts, checks , and bank statements must be labeled "escrow" and the accounts must be designated as "escrow" accounts with the financial institution where such accounts are established.

e. The balance in the escrow accounts must be sufficient at all times to account for all funds that are designated to be held by the firm or sole proprietorship.

2. Escrow deposits.

a. All down payments, earnest money deposits, money received upon final settlement, application deposits, 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 any other person must be deposited into an escrow account, in accordance with relevant law, unless all principals to the transaction have agreed otherwise in writing.

b. Funds to be deposited in the escrow account may include moneys that will ultimately belong to the licensee in the escrow account, provided such money is separately identified in the escrow account records and paid to the firm from the escrow account when funds become due to the licensee. Funds in an escrow account must not be paid directly to the licensees of the firm.

c. The fact that an escrow account contains money that may ultimately belong to the licensee does not constitute "commingling of funds" as set forth by subdivision D 2 of this section, provided that there are periodic withdrawals of the 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.

B. Handling and disbursement of funds from escrow accounts.

1. Purchase transactions.

a. Upon the ratification of a contract, an earnest money deposit received by the principal broker or supervising broker or the broker's associates must be deposited, handled, and disbursed in accordance with § 54.1-2108.2 of the Code of Virginia.

b. Unless otherwise agreed in writing by all principals to the transaction, a licensee will 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.

2. Lease transactions:

a. Any application deposit, security deposit, rent, or other money paid to the licensee acting on behalf of a landlord client in connection with the lease must be deposited in an escrow account in accordance with § 54.1-2108.1 of the Code of Virginia.

b. Security deposits must be treated in accordance with the security deposit provisions of the Virginia Residential Landlord and Tenant Act, Chapter 12 (§ 55.1-1200 et seq.) of Title 55.1 of the Code of Virginia, unless exempted therefrom, in which case the terms of the lease or other applicable law will control.

c. Prepaid rent must be treated in accordance with the prepaid rent provisions of the Virginia Residential Landlord and Tenant Act, Chapter 12 (§ 55.1-1200 et seq.) of Title 55.1 of the Code of Virginia.

d. Escrow funds must remain in an escrow account until disbursed in accordance with the terms of the lease, the property management agreement, or the applicable statutory provisions.

e. Unless otherwise agreed in writing by the principals to the lease or property management agreement, as applicable, a licensee will 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.

f. 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.

3. On funds placed in an account bearing interest, written disclosure in the contract of purchase or lease at the time of contract or lease writing must be made to the principals to the transaction regarding the disbursement of interest.

4. A licensee must not disburse or cause to be disbursed moneys from an 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) must not be deducted from a deposit or down payment.

C. Escrow and foreclosure.

1. Purchase transactions. If a principal broker or supervising broker is holding escrow funds for the owner of real property and such property is foreclosed upon, the principal broker or supervising broker must comply with the provisions of § 54.1-2108.1 A 1 and A 2 of the Code of Virginia.

2. Lease transactions.

a. If a single-family residential dwelling unit is foreclosed upon and there is a tenant in the dwelling unit on the date of the foreclosure sale and the landlord is holding a security deposit of the tenant, the landlord must handle the security deposit in accordance with § 54.1-2108.1 A 3 of the Code of Virginia.

b. If there is 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.

c. If a single-family residential dwelling unit is foreclosed upon, and at the date of the foreclosure sale there is a written property management agreement between a licensee and a landlord, the property management agreement must continue in accordance with § 54.1-2108.1 A 5 of the Code of Virginia.

D. Improper maintenance of escrow funds includes:

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 the broker's employees or associates or any licensee with the broker's own funds, or those of the broker's corporation, firm, or association. 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, will constitute commingling;

3. Failing to deposit escrow funds in an account designated to receive only such funds as required by subdivision A 1 of this section; and

4. Failing to have sufficient balances in an escrow account at all times for all funds that are designated to be held by the firm or sole proprietorship as required by this chapter.