Must I provide a copy of the buyers EMD check when submitting an offer to purchase a property?
We have been experiencing an uptick in calls concerning earnest money deposits and verification that the escrow agent has received EMD funds. Listing agents are demanding copies of EMD checks from buyer agents and in some cases, refusing to present offers if a copy of the EMD check is not provided.
Virginia law does not require a licensee to provide a copy of an EMD check to another licensee. Further, a copy of a check only proves that a check has been written – not that it was given to the escrow agent per the purchase agreement, or that there are or will be sufficient funds in the account once the check is deposited.
Real estate licensees have both an ethical and legal obligation to protect the interests of their clients. This obligation includes protecting their personal information. In this age of wire fraud, credit card skimming, and identity theft, personal financial information is extremely vulnerable. Virginia Agency law provides that licensees representing buyers must “maintain [the] confidentiality of all personal and financial information received from the client during the brokerage relationship … unless otherwise provided by law or the buyer consents in writing to the release of such information.”
Best practice is for the buyer agent to confirm in writing that the escrow agent has acquired the EMD and that the escrow agent has (or will) deposit the EMD into the firm’s escrow account. Agents should not keep copies of buyer earnest money deposit checks in unsecured transaction files, digital or paper. If a copy of an EMD check is stored in paper or digital form, and/or transmitted via email the account information and routing numbers should be redacted. Brokers should establish procedures in their office policy manuals to address the handling of client financial information.
Lastly, a listing agent cannot refuse to submit an offer to the seller because a copy of the EMD check is not included. Such refusal could be both an agency law and Code of Ethics violation.
If you have questions concerning the handling of EMD checks, you may call Peggy Lynch, 804.422.5006 or send email to plynch@RARealtors.com.