(a)A broker who maintains trust funds shall either keep a separate trust account or use an escrow agent for all such trust funds. [For the purposes of this section, "trust account" includes any trust, escrow, custodial, property management account, or other account in which a licensee holds money on behalf of another person.] (b)A broker may designate a salesperson as an authorized signatory on any trust account; however, the broker shall be solely responsible and accountable for all trust funds received by the broker and all deposits to or disbursements from the trust account. (c)A salesperson shall immediately deliver to the sponsoring broker any trust funds received in connection with a real estate transaction not otherwise deposited with a title company. (d)[(b)] A licensee maintaining a trust account shall retain for a period of four years a documentary record of each deposit or withdrawal from the account. (e)A licensee shall not commingle trust funds with personal funds or other non-trust funds and shall not deposit or maintain trust funds in a personal account or any kind of business account except a specifically designated trust account in the name of the sponsoring broker. (f)[(c)] If a licensee accepts money belonging to others, the licensee holds such money in a fiduciary capacity. (g)If any or all of the parties to a real estate transaction make demand for the money, the licensee must, within a reasonable time, properly account for or remit the money. "Reasonable time" means within 30 days after demand is made for an accounting or for remittance of money belonging to others. [(d)]"Properly account for or remit" is defined as the licensee's obligation [means] to pay the money to the party or parties entitled to the money if it can be reasonably determined to which party or parties the money should be paid. A licensee may pay the money into the registry of a court and interplead the parties if it cannot be reasonably determined to which party or parties the money should be paid. (h)[(e)] If, by written agreement of the parties to the real estate transaction, the licensee holding money belonging to others has the right to require the receipt, release and authorization in writing from all parties before paying the money to any party or parties, and if the licensee chooses to exercise that right, "properly account for or remit" means to furnish every party with a written statement requesting such receipt, release and authorization and detailing the amount and place of custody of the money and to pay the money to the party or parties in accordance with the receipts, releases and authorizations, if obtained. When a broker makes a disbursement to which all parties to the contract have not expressly agreed in writing, the broker must immediately notify all parties in writing of the disbursement. A licensee may pay the money into the registry of a court and interplead the parties if the receipts, releases and authorizations that the licensee has the right to require cannot be obtained. (i)[(f)] If trust funds are [escrow or other money belonging to another is] held by a licensee, they [it] must be maintained in [a] the broker's trust account. Placing such money in a licensee's operating account is prima facie evidence of [constitutes] commingling. (j)[(g)] If a licensee acquires ownership of money, including entitlement to a real estate commission for the real estate transaction, held in the licensee's trust account that was originally held in trust for another in connection with the real estate transaction, such money must be removed from the trust account within a reasonable time. "Reasonable time" in this context means within 30 days after the licensee acquires ownership of the money. (k)[(h)] The balance of a broker's trust account shall at all times equal the total of the trust funds received for which the broker is accountable, provided, however, the broker may deposit and maintain a reasonable amount of funds in the trust account to cover bank service fees, including fees charged for insufficient funds. Detailed records must be kept for any funds deposited under this exception. Paying operating expenses or making withdrawals from a broker's trust account for any purpose other than proper disbursement of money held in trust is prima facie evidence of commingling money held in trust with the broker's own funds.
This agency hereby certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on August 26, 2010
TRD-201005030 Loretta R. DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: October 10, 2010
For further information, please call: (512) 465-3926
|
