WSR 03-13-024

PROPOSED RULES

DEPARTMENT OF LICENSING


[ Filed June 9, 2003, 3:42 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 03-09-049.

Title of Rule: Will amend WAC 308-124E-013(4) Administration of funds held in trust.

Purpose: Would require that real estate licensees obtain receipts for earnest money, deliver all receipts to brokers, and disclose to consumers the risks in depositing earnest money with third party holders.

Statutory Authority for Adoption: RCW 18.85.040(1).

Statute Being Implemented: RCW 18.85.310.

Summary: In recent years, the real estate industry has allowed for buyers and sellers to negotiate an earnest money which could be delivered by any designated person to a third party other than the broker. These earnest moneys have sometimes not been delivered, receipts have not been obtained, and the third party holders (such as escrow and title companies) have not responded to demands for refund or forfeiture in the way a real estate brokers is required to respond.

Reasons Supporting Proposal: To provide for better safeguards in the delivery and receipting for earnest money in real estate transactions.

Name of Agency Personnel Responsible for Drafting: Jana L. Jones, Department of Licensing, Black Lake Complex, P.O. Box 2445, Olympia, WA, (360) 664-6524; Implementation and Enforcement: Department of Licensing, Real Estate Program, Black Lake Complex, P.O. Box 2445, Olympia, WA.

Name of Proponent: Washington State Real Estate Commission and Department of Licensing, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Proposal Changes the Following Existing Rules: Amends WAC 308-124E-013(4).

No small business economic impact statement has been prepared under chapter 19.85 RCW.

RCW 34.05.328 does not apply to this rule adoption. Department of Licensing exempt.

Hearing Location: WestCoast Wenatchee Center, 201 North Wenatchee Avenue, Wenatchee, WA 98801, (509) 662-4411, on September 23, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Jana Jones by September 22, 2003, TDD (360) 753-1966 or (360) 664-6524.

Submit Written Comments to: Contact Jana L. Jones, Assistant Administrator, Real Estate, P.O. Box 2445, Olympia, WA 98507, fax (360) 568-0998, by September 22, 2003.

Date of Intended Adoption: September 23, 2003.

June 9, 2003

Alan E. Rathbun

Assistant Director, BPD

OTS-6466.1


AMENDATORY SECTION(Amending WSR 00-08-035, filed 3/29/00, effective 7/1/00)

WAC 308-124E-013   Administration of funds held in trust -- Real estate and business opportunity transactions.   The procedures in this section are applicable to funds received by the broker in connection with real estate sales or business opportunity transactions or options thereon. These procedures are in addition to the requirements of the general trust account procedures contained in WAC 308-124E-012.

(1) Bank accounts shall be designated as trust accounts in the firm or DBA name of the real estate broker as licensed. Trust bank accounts for real estate sales or business opportunity transactions shall be interest bearing demand deposit accounts. These accounts shall be established as described in RCW 18.85.310 and this section.

(a) The broker shall maintain a pooled interest bearing trust account identified as housing trust fund account for deposit of trust funds which are ten thousand dollars or less.

Interest income from this account will be paid to the department by the depository institution in accordance with RCW 18.85.310(7) after deduction of reasonable bank service charges and fees, which shall not include check printing fees or fees for bookkeeping systems. The department shall remit the funds to the state treasurer.

(b) The agent shall disclose in writing to the party depositing more than ten thousand dollars that the party has an option between (i) and (ii) below;

(i) All trust funds not required to be deposited in the account specified in (a) of this subsection shall be deposited in a separate interest-bearing trust account for the particular party or party's matter on which the interest will be paid to the party(ies); or

(ii) In the pooled interest-bearing account specified in (a) of this subsection if the parties to the transaction agree in writing.

(c)(i) For accounts established as specified in (a) of this subsection, the broker will maintain an additional ledger card with the heading identified as "Housing trust account interest." As the monthly bank statements are received, indicating interest credited, the broker will post the amount to the pooled interest ledger card. When the bank statement indicates that the interest was paid to the state or bank fees were charged, the broker will debit the ledger card accordingly.

(ii) For accounts established as specified in (b)(i) of this subsection, the interest earned or bank fees charged will be posted to the individual ledger card.

(d) When the bank charges/fees exceed the interest earned, causing the balance to be less than trust account liability, the broker shall within one banking day after receipt of such notice, deposit funds from the brokers business account or other non-trust account to bring the trust account into balance with outstanding liability. The broker may be reimbursed by the party depositing the funds for these charges for accounts established as specified in (b)(i) of this subsection, if the reimbursement is authorized in writing by the party depositing the funds. For accounts established under (a) of this subsection, the broker will absorb the excess bank charges/fees as a business expense.

(2) A separate check shall be drawn on the real estate trust bank account, payable to the broker as licensed, for each commission earned, after the final closing of the real estate or business opportunity transaction. Each commission check shall be identified to the transaction to which it applies.

(3) No disbursements from the real estate trust bank account shall be made in advance of closing of a real estate or business opportunity transaction or before the happening of a condition set forth in the earnest money agreement, to any person or for any reason, without a written release from both the purchaser and seller; except that

(i) If the agreement terminates according to its own terms prior to closing, disbursement of funds shall be made as provided by the agreement without a written release; and

(ii) Funds may be disbursed to the escrow agent designated in writing by the purchaser and seller to close the transaction, reasonably prior to the date of closing in order to permit checks to clear.

(4) When a transaction provides for the earnest money deposit/note or other instrument to be held by a party other than the broker, the broker shall deliver the deposit to the party designated to hold the funds((, unless the parties to the transaction instruct otherwise in writing)). The delivery shall be made within one banking day after all parties to the transaction have signed the agreement, unless parties to the transaction instruct otherwise or writing. A dated receipt will be obtained and placed in the transaction file.

[Statutory Authority: RCW 18.85.040 and The Governor's Order on Regulatory Improvement 97-02. 00-08-035, 308-124E-013, filed 3/29/00, effective 7/1/00. Statutory Authority: RCW 18.85.040. 91-23-006, 308-124E-013, filed 11/7/91, effective 12/8/91; 90-23-039, 308-124E-013, filed 11/15/90, effective 12/16/90; 88-20-037 (Order PM 775), 308-124E-013, filed 9/30/88. Statutory Authority: RCW 18.85.310. 88-16-102 (Order 755), 308-124E-013, filed 8/3/88; 88-06-040 (Order PM 712), 308-124E-013, filed 3/1/88.]

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