REAL ESTATE COMMISSION 11:5-5.4
charges the broker shall accept as the sole source of funds for the payment by the broker of all credit card transaction fees due to the company, and the sole source of funds for all charge-backs which may be assessed against the broker by the company; or
2. The broker shall maintain a reserve amount of the broker’s funds in the special escrow or trust account to which charged payments will be credited. The said reserve shall be sufficient to cover all transaction fees incurred by the broker on charged transactions and all estimated charge-backs of payments by cardholders. The maintenance of such reserve funds in the said special escrow or trust account shall not be construed as commingling. In all cases where brokers utilize this procedure:
i. Transaction fees debited from the said reserve amount shall be replenished by the broker on at least a monthly basis;
ii. In the event that a broker is notified that a charge-back has occurred after some or all of the funds received through the charged-back payment have been disbursed, the broker shall, within one business day of receipt of such notice, replenish the reserve funds in the special escrow or trust account in an amount equal to the amount debited from the reserve through the charge-back; and
iii. Brokers may replenish or increase the said reserve amount as often as necessary. Brokers may only reduce the said reserve amount on an annual basis. All credits to and debits from the special escrow or trust account made by the broker to replenish, increase or decrease the reserve amount shall be duly noted in the business records of the broker and maintained as such as required by N.J.A.C. 11:5-5.4.
As amended, R.1982 d.101, effective April 5, 1982. See: 13 New Jersey Register 302(b), 14 New Jersey Register 345(b). New (a) and (b) added, (c) marked “Reserved”; old (a)-(e) numbered as (d)-(h). As amended, R.1983 d.471, effective November 7, 1983. See: 15 New Jersey Register 1343(a), 15 New Jersey Register 1865(c). Subsections (d) through (h) recodified as (c) through (g). Amended by R.1993 d.8, effective January 4, 1993. See: 24 New Jersey Register 3483(a), 25 New Jersey Register 118(a). Exception allowed to deposit of funds entrusted to real estate broker as escrow agent. Amended by R.1998 d.497, effective October 5, 1998. See: 30 New Jersey Register 2333(a), 30 New Jersey Register 3646(a). In (c), deleted “or other property” following “money” in 1, and substituted “moneys” for “properties” in 3; in (d), deleted “, the portion of such funds” preceding “which constitute” and substituted “indicate” for “define” following “records to”; and added (h). Amended by R.1999 d.444, effective December 20, 1999. See: 31 New Jersey Register 2675(a), 31 New Jersey Register 4282(a). Added (i) and (j).
11:5-5.2 Funds of others; safeguards
(a) No licensee shall accept funds or deposits from a prospective purchaser without ascertaining that there have been established by escrow, or otherwise, adequate precautions to safeguard such funds or deposits where the licensee knows, or conditions are such as to palpably give him reason to know, any facts which would tend to reasonably create a doubt:
1. As to the ability of the seller to perform his contractual obligations; or
2. As to the ability of the seller to return such funds or deposits in the event of the failure of a contingency contained in a real estate contract.
(b) The provisions of subsection (a) shall not apply to a licensee who, before accepting such funds or deposits, has adequately informed the prospective purchaser of any risk entailed and has secured from him a separate signed writing in which the purchaser has acknowledged:
1. His awareness of any risk or contingency;
2. The disposition of his funds or deposits; and
3. The absence of any representations by the licensee as to the solvency of the seller and his ability to return such funds.
(c) Funds or deposits placed in escrow pursuant to this regulation may be held by any person or entity legally authorized to hold funds in that capacity, such as, but not limited to, the real estate broker himself, lawyers or banks.
11:5-5.3 Advance fees; accounting
(a) Any broker who charges or collects an advance fee in excess of $ 25.00 for services to be rendered, such as, but not limited to advertising costs, under an advance fee agreement, shall within 90 days after such charge or collection furnish his principal with an accounting as to the use of such moneys.
(b) Such accounting shall set forth the actual amount of each individual expenditure, including date of insertion and name of newspaper or periodical, and similarly detail any other type of promotional expenditure if the funds are spent for other than newspaper or periodical advertising.
11:5-5.4 Records to be maintained by broker
(a) Every broker shall keep records as prescribed herein of all funds of others received by him or her for not less than six years from the date of receipt of any such funds. All such funds shall be deposited by the broker in accordance with the requirements of N.J.A.C. 11:5-5.1.
1. Whenever a broker receives funds to be held in trust in cash, a written receipt signed by the licensee to whom the funds were paid and specifying the date, amount, purpose and from whom those funds were received shall be issued to the payor of the funds. A copy of that receipt shall be retained by the broker as prescribed in this section.
(b) The records required to be kept pursuant to (a) above shall include:
1. Written references on the checkbook stubs or checkbook ledger pages to all deposits into and withdrawals from the account(s) maintained by the broker in accordance with N.J.A.C.