Escrow

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An escrow is a contractual arrangement in which a third party (the stakeholder or escrow agent) receives and disburses money or property for the primary transacting parties, with the disbursement dependent on conditions agreed to by the transacting parties. Examples include an account established by a broker for holding funds on behalf of the broker's principal or some other person until the consummation or termination of a transaction; [1] or, a trust account held in the borrower's name to pay obligations such as property taxes and insurance premiums. The word derives from the Old French word escroue, meaning a scrap of paper or a scroll of parchment; this indicated the deed that a third party held until a transaction was completed. [2]

Contents

Types

Escrow generally refers to money held by a third party on behalf of transacting parties. It is mostly used regarding the purchase of shares of a company. It is best known in the United States in the context of the real estate industry (specifically in mortgages where the mortgage company establishes an escrow account to pay property tax and insurance during the term of the mortgage). [3] Escrow is an account separate from the mortgage account where deposit of funds occurs for payment of certain conditions that apply to the mortgage, usually property taxes and insurance. The escrow agent has the duty to properly account for the escrow funds and ensure that usage of funds is explicitly for the purpose intended. Since a mortgage lender is not willing to take the risk that a homeowner may not pay property tax, escrow is usually required under the mortgage terms.

Escrow companies are also commonly used in the transfer of high value personal and business property, like websites and businesses, and in the completion of person-to-person remote auctions (such as eBay), although the advent of new low-cost online escrow services has meant that even low-cost transactions are now starting to benefit from use of escrow.

In the UK, escrow accounts are often used during private property transactions to hold solicitors' clients' money, such as the deposit, until such time as the transaction completes. [4] Other examples include:

Internet escrow

Internet escrow has existed since the beginning of Internet auctions and commerce. It was one of the many developments that allowed trust to be established in the online sphere. [5]

As with traditional escrow, Internet escrow works by placing money in the control of an independent and licensed third party in order to protect both the buyer and seller in a transaction. When both parties verify the transaction has been completed per terms set, the money is released. If at any point there is a dispute between the parties in the transaction, the process moves along to dispute resolution. The outcome of the dispute resolution process will decide what happens to money in escrow. With the growth of both business and individual commerce on the web, traditional escrow companies have been supplanted by new technologies.

In the US, the California Department of Business Oversight enacted Internet escrow companies as a licensed class effective 1 July 2001. [6] The first Internet escrow company to be licensed was Escrow.com, [7] founded by Fidelity National Financial in 1999. [8]

In the European Union, the Payment Services Directive, which commenced on 1 November 2009, has for the first time allowed the introduction of very low-cost Internet escrow services that are properly licensed and government-regulated. The regulatory framework in the EU allows these web-based escrow services, which operate along the lines of expensive letter of credit service run by banks for international buyers and sellers but at a cost in cents rather than thousands of Euros, the ability to enhance security in commercial transactions. [9]

Bogus escrow methods have been employed online. In an effort to persuade a wary Internet auction participant, the perpetrator will propose the use of a third-party escrow service. The victim is unaware that the perpetrator has actually created an escrow site that closely resembles a legitimate escrow service. The victim sends payment to the fraudulent escrow company and ends up receiving nothing in return. Alternatively, a victim may send merchandise to the subject and waits for his/her payment through the escrow site, which is never received because it is illegitimate. [10] Genuine online escrow companies will be listed on a government register, and users are generally advised not to use an online escrow service without first verifying that it is genuine by independently viewing a government on-line register. Currently, the US Federal Government does not offer a license for online escrow services. However, certain states offer their own license for online escrow services; such as the California Department of Business [11] and the Arizona Department of Financial Institutions. [12]

Banking

Escrow is used in the field of automatic banking and vending equipment. One example is automated teller machines (ATMs), and is the function which allows the machine to hold the money deposited by the customer separately, and in case he or she challenges the counting result, the money is returned. Another example is a vending machine, where the customer's money is held in a separate escrow area pending successful completion of the transaction. If a problem occurs and the customer presses the refund button, the coins are returned from escrow; if no problem occurs, they fall into the coin vault of the machine. [13]

Intellectual property

Source code escrow agents hold source code of software in escrow just as other escrow companies hold cash. Sometimes one may not own or have any rights to the software (including source code) that they are accessing under the terms of a regular SaaS or desktop software agreement. This arrangement does not usually become an issue until technical problems start to arise, i.e. unexpected service interruptions, downtime, loss of application functionality and loss of data. This can add significant costs to one's business, as they remain reliant upon the software supplier to resolve these issues, unless an escrow agreement is in place. Escrow is when the software source code is held by a third party—an escrow agent—on behalf of the customer and the supplier.[ citation needed ] Information escrow agents, such as the International Creative Registry, hold in escrow intellectual property and other information. Examples include song music and lyrics, manufacturing designs and laboratory notebooks, and television and movie treatments and scripts. This is done to establish legal ownership rights, with the independent escrow agents attesting to the information's ownership, contents, and creation date.

Law

Escrow is also known in the judicial context. So-called escrow funds are commonly used to distribute money from a cash settlement in a class action or environmental enforcement action. This way the defendant is not responsible for distribution of judgment monies to the individual plaintiffs or the court-determined use (such as environmental remediation or mitigation). The defendant pays the total amount of the judgment (or settlement) to the court-administered or appointed escrow fund, and the fund distributes the money (often reimbursing its expenses from the judgment funds).

Real estate

In the US, escrow payment is a common term referring to the portion of a mortgage payment that is designated to pay for real property taxes and hazard insurance. It is an amount "over and above" the principal and interest portion of a mortgage payment. Since the escrow payment is used to pay taxes and insurance, it is referred to as "T&I", while the mortgage payment consisting of principal and interest is called "P&I". The sum total of all elements is then referred to as "PITI", for "Principal, Interest, Tax, and Insurance". Some mortgage companies require customers to maintain an escrow account that pays the property taxes and hazard insurance. Others offer it as an option for customers. Some types of loans, most notably Federal Housing Administration (FHA) loans, require the lender to maintain an escrow account for the life of the loan.

Even with a fixed interest rate, monthly mortgage payments may change over the life of the loan due to changes in property taxes and insurance premiums. For instance, if a hazard insurance premium increases by $120 per year, the escrow payment will need to increase by $10 per month to account for this difference (in addition to collection for the resulting escrow shortage when the mortgage company paid $120 more for the hazard insurance premium than what was anticipated). By RESPA guidelines the escrow payment must be recomputed at least once every 12 months to account for increases in property taxes or insurance. This is called an escrow analysis.

The escrow payment used to pay taxes and insurance is a long-term escrow account that may last for years or for the life of the loan. Escrow can also refer to a shorter-term account used to facilitate the closing of a real estate transaction. In this type of escrow, the escrow company holds all documents and money related to closing the transaction, rather than having the buyer and the seller deal directly with each other. When and if the transaction is ready to close, the escrow company distributes all funds and documents to their rightful recipients, and records the deed with the appropriate authorities. [14]

Courts sometimes act as stakeholders, holding property while litigation between the possible owners resolves the issue in which one is entitled to the property.

Mergers and acquisitions

Escrow arrangement is often used as a part of mergers and acquisitions a supplement that warranties and indemnities offered by the seller(s). [15] This will be particularly likely where the credit risk of the seller(s) is of poor quality and the buyer is concerned about their ability to recover any sums that may become due.

Unlike many other forms of escrow, escrow arrangements in corporate transactions are often designed to last for extended periods rather than simply to complete the transfer of an asset. There is also commonly the requirement for an escrow agent to adjudicate on the validity of a claim on the escrow funds, which can lead to the risk of the dispute between the parties.

Due to the length that the funds are held, the escrow arrangements need to take into account different considerations to those for other escrow arrangements, for example (i) information provision to the parties; (ii) application of interest earned on the funds; and (iii) credit worthiness of the financial institution.

Gambling

For example, two people may bet on the outcome of a future event. They ask a third, disinterested, neutral person—the stakeholder—to hold the money ("stakes") they have wagered ("staked"). After the event occurs, the stakeholder distributes the stakes to one or both of the original (or other) parties according to the outcome of the event and according to the previously decided conditions. Trustees also often act as stakeholders, holding property until beneficiaries come of age, for example.

Not all escrow agreements impose the duties of a legal trustee on the escrow agent, and in many such agreements, escrow agents are held to a mere gross negligence standard and benefit from indemnity and hold harmless provisions.

If the escrow agent is licensed by governmental authority,[ where? ] then much higher legal standards may apply.

See also

Related Research Articles

In law, conveyancing is the transfer of legal title of real property from one person to another, or the granting of an encumbrance such as a mortgage or a lien. A typical conveyancing transaction has two major phases: the exchange of contracts and completion.

A paymaster is someone appointed by a group of buyers, sellers, investors or lenders to receive, hold, and dispense funds, commissions, fees, salaries (remuneration) or other trade, loan, or sales proceeds within the private sector or public sector. Specific titles within the British government are Paymaster of the Forces, Paymaster General and Paymaster of Pensions.

This aims to be a complete list of the articles on real estate.

<span class="mw-page-title-main">Factoring (finance)</span> Financial transaction and a type of debtor finance

Factoring is a financial transaction and a type of debtor finance in which a business sells its accounts receivable to a third party at a discount. A business will sometimes factor its receivable assets to meet its present and immediate cash needs. Forfaiting is a factoring arrangement used in international trade finance by exporters who wish to sell their receivables to a forfaiter. Factoring is commonly referred to as accounts receivable factoring, invoice factoring, and sometimes accounts receivable financing. Accounts receivable financing is a term more accurately used to describe a form of asset based lending against accounts receivable. The Commercial Finance Association is the leading trade association of the asset-based lending and factoring industries.

<span class="mw-page-title-main">Transaction account</span> Bank holding that clients can access on demand

A transaction account, also called a checking account, chequing account, current account, demand deposit account, or share account at credit unions, is a deposit account or bank account held at a bank or other financial institution. It is available to the account owner "on demand" and is available for frequent and immediate access by the account owner or to others as the account owner may direct. Access may be in a variety of ways, such as cash withdrawals, use of debit cards, cheques and electronic transfer. In economic terms, the funds held in a transaction account are regarded as liquid funds. In accounting terms, they are considered as cash.

A repurchase agreement, also known as a repo, RP, or sale and repurchase agreement, is a form of short-term borrowing, mainly in government securities. The dealer sells the underlying security to investors and, by agreement between the two parties, buys them back shortly afterwards, usually the following day, at a slightly higher price.

Title insurance is a form of indemnity insurance, predominantly found in the United States and Canada, that insures against financial loss from defects in title to real property and from the invalidity or unenforceability of mortgage loans. Unlike some land registration systems in countries outside the United States, US states' recorders of deeds generally do not guarantee indefeasible title to those recorded titles. Title insurance will defend against a lawsuit attacking the title or reimburse the insured for the actual monetary loss incurred up to the dollar amount of insurance provided by the policy.

<span class="mw-page-title-main">Financial transaction</span> Form of agreement carried out between a buyer and seller

A financial transaction is an agreement, or communication, between a buyer and seller to exchange goods, services, or assets for payment. Any transaction involves a change in the status of the finances of two or more businesses or individuals. A financial transaction always involves one or more financial asset, most commonly money or another valuable item such as gold or silver.

The closing is the final step in executing a real estate transaction. It is the last step in purchasing and financing a property. On the closing day, ownership of the property is transferred from the seller to the buyer. In most jurisdictions, ownership is officially transferred when a deed from the seller is delivered to the buyer.

The CFPB requires that lenders provide customers with a Loan Estimate to help them understand the full cost of buying a home with a mortgage. The Loan Estimate replaces the Good Faith Estimate, or GFE, that was used prior to 2015.

Closing costs are fees paid at the closing of a real estate transaction. This point in time called the closing is when the title to the property is conveyed (transferred) to the buyer. Closing costs are incurred by either the buyer or the seller.

<span class="mw-page-title-main">Commercial property</span> Buildings or land intended to generate a profit, either from capital gain or rental income

Commercial property, also called commercial real estate, investment property or income property, is real estate intended to generate a profit, either from capital gains or rental income. Commercial property includes office buildings, medical centers, hotels, malls, retail stores, multifamily housing buildings, farm land, warehouses, and garages. In many U.S. states, residential property containing more than a certain number of units qualifies as commercial property for borrowing and tax purposes.

<span class="mw-page-title-main">Real Estate Settlement Procedures Act</span>

The Real Estate Settlement Procedures Act (RESPA) was a law passed by the United States Congress in 1974 and codified as Title 12, Chapter 27 of the United States Code, 12 U.S.C. §§ 2601–2617. The main objective was to protect homeowners by assisting them in becoming better educated while shopping for real estate services, and eliminating kickbacks and referral fees which add unnecessary costs to settlement services. RESPA requires lenders and others involved in mortgage lending to provide borrowers with pertinent and timely disclosures regarding the nature and costs of a real estate settlement process. RESPA was also designed to prohibit potentially abusive practices such as kickbacks and referral fees, the practice of dual tracking, and imposes limitations on the use of escrow accounts.

Under Section 1031 of the United States Internal Revenue Code, a taxpayer may defer recognition of capital gains and related federal income tax liability on the exchange of certain types of property, a process known as a 1031 exchange. In 1979, this treatment was expanded by the courts to include non-simultaneous sale and purchase of real estate, a process sometimes called a Starker exchange.

Mortgage fraud refers to an intentional misstatement, misrepresentation, or omission of information relied upon by an underwriter or lender to fund, purchase, or insure a loan secured by real property.

<span class="mw-page-title-main">Mortgage</span> Loan secured using real estate

A mortgage loan or simply mortgage, in civil law jurisdictions known also as a hypothec loan, is a loan used either by purchasers of real property to raise funds to buy real estate, or by existing property owners to raise funds for any purpose while putting a lien on the property being mortgaged. The loan is "secured" on the borrower's property through a process known as mortgage origination. This means that a legal mechanism is put into place which allows the lender to take possession and sell the secured property to pay off the loan in the event the borrower defaults on the loan or otherwise fails to abide by its terms. The word mortgage is derived from a Law French term used in Britain in the Middle Ages meaning "death pledge" and refers to the pledge ending (dying) when either the obligation is fulfilled or the property is taken through foreclosure. A mortgage can also be described as "a borrower giving consideration in the form of a collateral for a benefit (loan)".

A real estate transaction is the process whereby rights in a unit of property are transferred between two or more parties, e.g. in the case of conveyance one party being the seller(s) and the other being the buyer(s). It can often be quite complicated due to the complexity of the property rights being transferred, the amount of money being exchanged, and government regulations. Conventions and requirements also vary considerably among different countries of the world and smaller legal entities (jurisdictions).

A proof of funds (POF) is a document such as a bank statement proving that a person or a company has the financial ability to perform a transaction or meet a potential future liability. The POF can be issued by a bank, a financial institution or a trade finance provider.

<span class="mw-page-title-main">Escrow.com</span>

Escrow.com is a privately held internet escrow company. Based in San Francisco, CA, Escrow.com was founded in 1999 by Fidelity National Financial. It was acquired in 2015 by Freelancer.com.

There are many types of e-commerce models, based on market segmentation, that can be used to conducted business online. The 6 types of business models that can be used in e-commerce include: Business-to-Consumer (B2C), Consumer-to-Business (C2B), Business-to-Business (B2B), Consumer-to-Consumer (C2C), Business-to-Administration (B2A), and Consumer-to-Administration

References

  1. ↑ "Escrow Process Elements & Tips". Archived from the original on 2007-09-16.
  2. ↑ "escrow - Origin and meaning of escrow by Online Etymology Dictionary". www.etymonline.com.
  3. ↑ "What is an escrow or impound account?". consumerfinance.gov. 4 September 2020. Retrieved 31 July 2021.
  4. ↑ UK, eSources. "Using Escrow For Payments (Payments Series - Article 2) - eSources.co.uk". articles.esources.co.uk.
  5. ↑ "eBay Community : Letter". EBay . Archived from the original on Feb 8, 2005.
  6. ↑ "California Financial Code, Division 6 Escrow Agents, Chapter 1, Section 17003". California Legislative Information. Retrieved 14 July 2016.
  7. ↑ "California Department of Corporations Online Escrow Fraud Questions & Answers" (PDF). California Department of Business Oversight. California Department of Corporations. Archived from the original (PDF) on 21 September 2016. Retrieved 14 July 2016.
  8. ↑ "Fidelity National Financial, Inc. to Offer Internet Escrow Services Through Escrow.com". PR Newswire Association LLC. Archived from the original on 5 March 2016. Retrieved 14 July 2016– via The Free Library.
  9. ↑ "Directive on Payment Services (PSD)". Archived from the original on 2014-11-05.
  10. ↑ "Internet Crime Complaint Center (IC3) - Internet Crime Schemes". www.ic3.gov. Archived from the original on 2012-03-06. Retrieved 2010-06-24.
  11. ↑ "California Department of Business". Archived from the original on 2014-07-14. Retrieved 2014-06-09.
  12. ↑ "Home | Arizona Department of Financial Institutions". dfi.az.gov.
  13. ↑ Up and Running Archived 2007-08-06 at the Wayback Machine , Tim Sanford, Vending Times, August 2005.
  14. ↑ "How Does an Escrow Account Work?". Money. Archived from the original on April 29, 2022. Retrieved 9 June 2018.
  15. ↑ "Guide to M&A Escrow - Elemental CoSec". www.elementalcosec.com.
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