Most FSBOs (people who are selling their own homes) are aware of the conventional use of escrow. In this article, we look at ways to use escrow to solve problems. 

Escrow

Escrow means different things in different parts of the country.  In California it’s part and parcel of the settlement process. In Virginia, while there’s no formal escrow before settlement, the settlement agent gathers title information, draws or has a deed drawn, coordinates with the lender, receives various inspection reports and in general conducts an informal escrow in the days before settlement. The difference is that, in Virginia, usually documents aren’t signed by the parties until they meet at the settlement table.  It’s the use of escrow after this period that we’re concerned with here.

A Problem Rears Its Head

What’s possible varies from state to state, but creating an escrow account (usually held by the settlement agent) after a home is sold can solve problems. What sorts of problems? Let’s look at a few.

First of all, let’s assume the buyer or seller needs, or wants, to settle by a certain date. Lots of things can cause this including the date school starts, the date a breadwinner starts a new job or the date of settlement on the seller’s new home.

Now, let’s suppose a problem crops up which would prevent that settlement deadline from being met.  Such problems might be caused by the discovery of termites and termite damage, the discovery of encroachment on a utility right of way by a garden shed on the property being sold or the discovery of high levels of radon gas within the home.  

Let’s further suppose that the buyer and seller have agreed on the basic solution of the problem. In the above examples, typical solutions might be that the seller will have the home treated for termites and have a licensed contractor repair the damage. Or the seller will have a contractor move the shed out of the right of way. Or the seller will install a radon mitigation system.  Of course, everything is negotiable, and a buyer who wants a property badly enough could agree to fix the defects himself.

What if the pest control company, contractor or the radon mitigation company can’t finish their work until after the planned settlement date?  What happens then?  Most frequently, settlement is delayed until these sorts of things are taken care of, but sometimes that isn’t desirable.  Sometimes delay of settlement can be a deal killer.

Problem Solving 101

Enter the “after settlement escrow.” The parties agree that an amount of money (usually a bit larger than the estimate) is set aside in escrow pending completion of the work. The escrow agent has clear (usually written) instructions about what must be done before the money is released to the person who put it up (or before the work is paid for and any excess returned to the person who put it up).

The funding of an after settlement escrow usually comes from the proceeds of the sale, so it can be used where there are no funds to take corrective action any other way. Even if the person responsible could get a loan for the purpose, the process could take too long to meet the settlement deadline. In that way, it can be a “cash flow” solution, too. 

No matter what problem you encounter, it’s usually possible for a willing seller and a willing buyer to work things out. Remember that all sorts of needs can be accommodated without anyone’s being a loser.  Situations in which both buyer and seller are winners happen frequently. With any luck, that’s what will happen in your case. It just takes creativity and persistence.