A neutral holding the money, and the duties that come with it.
Esshaki Legal Media TeamCurrent as of November 2023
Closings run through an escrow or title agent holding funds and documents
subject to instructions.
Duties. Strictly limited to the instructions. The agent is not an advocate
for either side and has no duty to advise on the transaction’s merits, though
several jurisdictions impose a duty to disclose known fraud.
Instructions. Written, signed by both parties, specifying the conditions for
release and what happens if they are not met. Conflicting instructions paralyse
the agent, whose remedy is interpleader.
Good funds. State laws require collected funds before disbursement, with
defined categories. Disbursing against uncollected funds is where agent losses
occur.
Wire fraud. Fraudulent instructions redirecting closing proceeds are the
dominant loss in this area. Controls: verification of wire instructions by
telephone to a previously verified number, no acceptance of changed instructions
by email, and warnings to all parties at engagement.
Closing protection letters from the underwriter indemnifying the lender and
in some states the buyer against the agent’s fraud or failure to follow
instructions. Obtain one; it is the practical remedy when an agent
misappropriates.
Recording. The agent’s obligation to record promptly, and gap coverage for
the interval between closing and recording.