§ 33-28-122 — Responsible broker's trust accounts; disposition of interest; commingling with personal funds prohibited; disputed deposits; cooperative transactions

(a) Every responsible broker licensed by the commission in
this state shall comply with the following provisions for each
licensed real estate company he supervises:
(i) Maintain an account in a financial institution in
this state designated as a trust or escrow account in which all
down payments, earnest money deposits, advance listing fees or
other trust funds received by him, his associate brokers or his
salespersons on behalf of a principal or any other person shall
be deposited unless all persons having an interest in the funds
have agreed otherwise in writing. The account shall permit
immediate withdrawal of the funds deposited therein. In lieu of
maintaining a trust or escrow account under this paragraph, a
responsible broker may use a funds holder;
(ii) Notify the real estate commission on forms it
prescribes of the name of the financial institution in which a
trust account is maintained and the name of the account. If the
responsible broker uses a funds holder and deposits monies with
the funds holder, his intention to use a funds holder and the
name of the funds holder shall be disclosed to all parties to
any contract, purchase agreement, lease or lease agreement
negotiated by him. The responsible broker shall identify all
funds holders used by the broker and notify the real estate
commission in writing that he uses and deposits monies with the
funds holder;
(iii) Permit the commission or its representative to
examine the responsible broker's trust accounting records;
(iv) Upon cancellation of his license for any reason,
maintain the trust account until all deposits have been properly
disbursed.
(b) If a responsible broker's branch office maintains a
separate trust account, the office shall maintain a separate
bookkeeping system.
(c) A trust account maintained by a responsible broker
under this section may be interest bearing or noninterest
bearing. Any interest accrued on any deposit in a trust account
shall be paid out as agreed in writing by all persons having an
interest in the deposit. In the absence of a written agreement
among all persons having an interest in the deposit, at the time
all or any portion of any deposit is withdrawn and paid out, all
interest accrued upon the funds withdrawn and paid out shall
also be withdrawn and paid out to the person from whom the trust
funds were received; provided, if the funds are required to be
disbursed to more than one (1) person, each person entitled to
receive any portion of the deposit shall also be paid a portion
of the interest in the same proportion as the funds withdrawn
and paid out to each person bears to the total deposit.
(d) A licensee is not entitled to any part of the earnest
money or other item of value given to him in connection with any
real estate transaction as part or all of his compensation or
fee until the transaction has been consummated or terminated.
(e) No responsible broker shall permit an advance payment
of funds belonging to others to be deposited in the responsible
broker's personal account or be commingled with his personal
funds. It will not be considered commingling if, when
establishing the trust account, the responsible broker deposits
some of his funds to keep the account open or to avoid charges
for a minimum balance, so long as that deposit is identified at
the time of deposit. No responsible broker shall use deposits in
a trust account for a purpose other than the transaction for
which they were provided.
(f) In the event of a dispute over the return or
forfeiture of any deposit held by a responsible broker, the
responsible broker shall continue to hold the deposit in a trust
account until he has a written release from the parties
consenting to its disposition, until a civil action is filed or
the responsible broker interpleads all parties, at which time it
may be paid to the court.
(g) Unless otherwise agreed by all parties to the
contract, in a cooperative transaction in which the responsible
broker working with a buyer receives cash or a check as earnest
money, the responsible broker shall deliver the contract and the
cash or check to the responsible broker working with the seller
who shall deposit the cash or check in his trust account. If the
responsible broker working with a buyer receives a promissory
note, or thing of value, the note or thing of value shall be
delivered with the contract to the responsible broker working
with the seller, who shall hold the note or thing of value.