Article 8 of the Code of Ethics and Standards of Practice of the National Association of REALTORS is the primary responsibility for the accounting and security of funds belonging to others.
Specifically, this article states:
REALTORS shall keep in a special account in an appropriate financial institution, separated from their own funds, monies coming into their possession in trust for other persons, such as escrow, trust funds, clients’ monies, and other like items.
Following is a case interpretation, taken from the Code of Ethics and Arbitration Manual – What Would You Do?
Case #8-2: Request for Investigation Filed by Board with the State Real Estate Commission
Realtor® A listed Client B’s residential property and sold it to Buyer C, who made a substantial deposit subject only to Buyer C’s obtaining a mortgage on terms and conditions not exceeding a specified rate of interest within 60 days.
Realtor® A assisted Buyer C by introducing him to officials of a lending institution, and after processing of his application for a mortgage, a written mortgage commitment was made by the lending institution which met the terms and conditions of the sales agreement. However, shortly after the mortgage commitment was received by Buyer C, Realtor® A received a certified, return receipt requested letter from Buyer C, advising that Buyer C had changed his mind and would not go through with the sale. Realtor® A discussed the matter by phone, but Buyer C said he would rather forfeit his deposit and definitely would not complete the sale, even at the risk of the seller suing for specific performance.
Realtor® A then advised Client B of Buyer C’s refusal to go through with the sale and Client B told Realtor® A that he did not wish to sue Buyer C, but would just accept a portion of the forfeited deposit as specified in the listing agreement between Client B and Realtor® A.
Realtor® A then obtained a written release from the sale from Client B and Buyer C, and promised to send Client B a check for the portion of the forfeited deposit due to Client B as specified in the listing agreement. However, Realtor® A failed to send Client B a check and Client B filed a complaint with the Executive Officer of the Board alleging a violation of Article 8 of the Code of Ethics.
At the hearing, Client B stated that he had no complaint about Realtor® A’s services to him except Realtor® A’s failure to provide Client B with the portion of the forfeited deposit due him, and that after several telephone calls and letters, Realtor® A had told Client B that he would provide the forfeited monies due Client B “just as soon as he could.” Client B said Realtor® A told him he had some unexpected expenses and therefore Client B would have to wait until Realtor® A obtained other funds which he expected to receive shortly.
Realtor® A admitted the facts as related and further admitted that he had not placed the deposit received from Buyer C into an escrow account, but had placed it in his general funds. He said that unexpected expenditures had caused a deficit balance in these funds, and he would pay Client B as soon as he could.
The Hearing Panel concluded that Realtor® A was in violation of Article 8 of the Code of Ethics and recommended that the decision, when final, be forwarded to the State Real Estate Commission as a possible violation of the public trust.
The Board of Directors affirmed the decision of the Hearing Panel; ordered implementation of the recommended sanction; and requested that the President forward, with advice of Board legal counsel, the final decision to the State Real Estate Commission as a possible violation of the public trust.[Please note that there is a requirement mandated by the National Association of REALTORS, that the Board of Directors must forward to the state real estate licensing authority any instance where a REALTOR has been found in violation of the Code of Ethics and there is reason to believe that the public trust may have been violated. The ‘public trust’, as used in this context, refers to demonstrated misappropriation of client or customer funds or property, willful discrimination, or fraud resulting in substantial economic harm.]