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If you are new to property sales & management, currently a property manager, receptionist, bookkeeper, onsite manager or work in any other aspect related to real estate agencies, understanding what a trust account is will help you understand how the entire industry revolves around this critical component.
The simplest description I can provide is that a trust account a is a bank account that contains funds, in trust, that belong to multiple people. The idea of ‘in trust’ has to do with the agency relationship that exist in most real estate transactions. Most real estate purchases and sales occur using an agency company, which will hold and distribute funds that belong to the parties involved in the transaction.
If you have a flow of sale transactions each month and manage 300 properties for 200 different owners, then you will have money that belongs to 200+ different people in your trust account. Since all of this money is in a single (or multiple) bank accounts, the act of keeping track of how much of the money belongs to who, is called trust accounting.
The agency relationship is derived from contracts between the owner of the property being managed or sold and the agent. This contract gives the property manager or selling company (the agent) specific authority to act on the behalf of the property owner. The whole point of property management is for the Agent to manage the real estate for a fee so that the owner does not have to. This means that any funds being held by the real estate agency on behalf of the owner does not belong to the agency and is, in fact, a liability on their Balance Sheet (money owed to the property owner).
Understanding, which properties and/or owners within the trust account have money, liabilities, and transactions is the key to understanding how property sales & management works. Each sale transaction & property management process involves the trust account. Tenants pay rent into the trust account, repairs and utilities are paid out of the trust account, owners put money into the trust account for deposits, marketing monies, liabilities, and owners, vendors & the agency themselves get paid from the trust account.
The entire concept of trust accounting is to accomplish one goal… ‘Who does the money belong to?’ All of the different state based legislation (links below) and practical information relate to this one topic. When dealing with rents & deposits received, bills paid, owners paid, and bank reconciliations, the main question will always be, of the total lump sum in the bank account, how much of it belongs to a certain person or property.
Understanding this concept will help you get to the bottom of a host of outstanding questions, regardless of whether you are an Agent Principal in sales, a property manager or accountant. Always returning to this question can help you organize your thoughts when trying to solve complex issues related to cash flow in your trust account and bank reconciliations.
Example: If you have $5,000 in a trust account and you have 4 properties that each have a balance of $1,000 each, and 1 property that has a cash balance of $900, you goal will be to find out who the remaining $100 belongs to, account for it, and document it.
The number one trust accounting violation is allowing the accounts cash balance to become negative. This is possible because there is generally a lot of money in the trust account even though the specific property does not have enough money to pay its bills. This commonly happens because a rent receipt by a tenant has bounced (been returned by the bank due to insufficient Funds), but you have already spent the money, or you spent more money than you had by accident. Regardless of the reason, this is the number one trust fund violation.
In essence, you have allowed one property owner to borrow funds from all of the other property owners’ whose funds are contained in the trust account. This cannot be done without a written agreement, and in most states is completely illegal. You cannot have a blanket written agreement to allow this, and most owners would not sign it if you had one.
The only remedy is to replace the money immediately. Either have the tenant give you a new form of payment, have the owner send you money to correct the imbalance, or the agent can loan funds to the property. During an audit, this violation will cause the auditors deliverables to report this issue to your regulator. ‘
The number two trust accounting violation is not preparing bank reconciliation in a timely fashion. Bank reconciliations allow you to see what has occurred in the trust bank account and match that to your accounting records. If you do not reconcile your bank account you might not; detect old unpresented cheques or bank fees that affect the trust account balance, payments that cleared the bank at an incorrect amount that does not correspond to the accounting system, deposit corrections that could affect property cash balances and tenant ledgers, and many other accounting issues.
Each state regulator states how often bank reconciliations and at a minimum must be completed once per month if there was no activity in the trust account. The more often you look at and reconcile your trust account, the less likely you are to have negative property cash balances. Not reconciling your trust account is a violation because failing to detect cash related issues and differences between the bank and accounting system is considered a reportable issue by the auditor on the basis of perceived negligence in maintaining the account.
The number three trust accounting violation is not depositing owner funds in a timely fashion. The regulations state in several places that you have 3 days to deposit funds that were received in trust for an owner. If you receive funds on behalf of a property owner for rent, utility refund, unpaid charges, vendor refund, or from the owner to pay expenses you have 3 days to deposit those funds in the trust account.
The reason this is so important is because generally funds received are booked in a short period of time. Booking refers to making an entry in the accounting system that the funds have been received. When you make this entry, it will generally give the property credit for the funds and allow you to spend the money. If you do this and do not actually put the money in the bank you can be spending money that the property does not actually have to spend. This is the same as trust fund violation number one.
Trust funds do not belong to the agent or the agent’s business. They are monies owed to their clients. For clean reporting, company structure, and to comply with regulations, agency funds are not allowed to be put into the trust account, except for a token sum which is used to pay bank fees but these are usually paid for by another non-trust account. Putting Agency money in the same account as money held in trust is called comingling. As you can imagine from the use of the word ‘mingle’, it causes all sorts of problems with clean record keeping and trust fund liability, and that is why it is a violation.
All company related income and expenses should be deposited to and paid from a company owned bank account. They should never be combined, or comingled, with the trust account. The easiest and most common way to accomplish this is to have separate bank accounts.
Generally, I should not have to state this, but the reverse is also true. The broker cannot borrow money from the trust account for company purposes, or take funds and deposit them in non-trust accounts. This is conversion, which is the legal word for theft. Even if the money is returned promptly, it is considered a violation of trust accounting regulations.
Conversion is the common legal word for theft, and refers to a circumstance when trust funds are either deposited into a non-trust bank account (usually owned by the Agency or their personnel), or funds are disbursed from the trust account on behalf of the Agent (trust funds are used to pay for the Agency’s office expenses). Even if this occurs by mistake it is the worst violation that can occur. This is essentially stealing from your clients and proper controls should be set in place to make this nearly impossible.
An agent found to be guilty of doing this will certainly be reported, and if it is considered purposeful for the greater community, they will likely lose their Agency licence & at the very least removed from a franchised network or brand if the Agent is part of one. All proper controls should be put into place to ensure that this does not occur, and if it does occur, that it will be detected and corrected quickly.
The purpose of most audits is to determine that the trust account liability is correct, and to detect possible conversion by real estate agents.
This varies from state to state but the principle applies in all states. The funds in the trust account do not belong to the broker. They are a liability to his clients that he has an agency relationship with. Thus, these funds should not be subject to the brokers debts. If the broker is sued then the trust account should not be attached.
The bank account should specifically refer to the agency business as ‘trustee’. This alerts the bank that it is a special type of account, and others that the funds do not belong to the Agency business.
You cannot earn interest on a trust account.
Record keeping and documentation is how the company proves to the state regulator and other governing boards what has occurred in the trust account if the company is audited. You must have a record by property and by date to show all deposits and disbursements & justification for all operational transactions undertaken.
You must keep copies of all deposit slips, and cheques among other items.
You must also keep copies of all bank statements, and reconciliation worksheets. Included in these worksheets should be a reconciliation that matches the balances of each property to the ending reconciled balance of the bank account. This is one of the hardest reports to produce. If multiple trust accounts are used, then separate records must be kept for each account.
Whilst we have been working with property management and real estate businesses for several years, we are not a real estate agency ourselves. Whilst we are knowledgeable on the subject and will cite rules and regulations it is important that you to do your own research and ensure that your business is otherwise compliant with matters that affect your specific real estate business.
The Chartered Accountants Australia and New Zealand logo is a trade mark of Chartered Accountants Australia and New Zealand and is used with permission. Liability limited by a scheme approved under Professional Standards legislation.
Sterling Group incorporates a property specific Chartered Accounting practice with Brent Agius as Principal.