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Old 23-11-2017, 10:32   #1
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Cool The facts about so-called boat “escrow”?

The facts about so-called boat “escrow”...

Background:

Boat brokers, unlike real estate brokers are – in general – NOT regulated or licensed. Known exceptions: Florida and California. Outside of these you are completely on your own. Even where regulated, don't expect to be treated much differently. Unregulated brokers may or may not merge your money with their own funds, may go out of business and you are SOL. Good luck. Use of an independent escrow agent and specific escrow instructions are HIGHLY recommended.

Also unlike real estate, there is no such thing as “title insurance”. Unlike real estate, tracing the true chain of ownership is VERY difficult as there are amazing differences between states, registration, titles and the like. Unless a boat has been continually documented since manufacture, one can never insure fully that the boat has not been damaged, salvaged, stolen, et al. This is EXACTLY why – and again unlike real estate – why title insurance for boats is unheard of. No insurer is willing to take that bet.

Even in Florida – where the broker boyz will say otherwise – there is no state mandated “escrow account” that Florida brokers are “required” to establish. To the contrary, Florida law mandates only a single “Trust Account” (important difference, read on), wherein all funds from all pending sales are merged into a single account owned and managed by the broker.. Here's why...

Quote:
“Trust Vs. Escrow..

“In acting as a non-biased third party protecting the interests of all parties involved, the escrow agent is often considered a trustee in the transaction. Despite the terms trust and escrow being used interchangeably, there is actually quite an important difference between the two.

The escrow agent is an impartial and independent party from both the buyer and the seller in real estate. The agent simply holds money, documents and other property based on terms outlined in a contract. In essence, the agent works as a proctor on behalf of the contract itself, making sure everything is followed before allowing the deal to proceed.

A trust account works in quite a different way. These types of accounts are usually used for one of two purposes. The first being an account that is opened by a trustee to hold trust funds payable on the occasion of certain terms being met such as a death in the family or a marriage. Sometimes trust funds are also created to hold “in trust” a sum of money that is payable when services are rendered in the future. A popular example of this is an attorney who is held on retainer. The funds used to pay the attorney are usually held in trust until the attorney completes a service to warrant that payment.

While trust and escrow operate similarly in terms of banking, the key difference between the two lies in the way responsibilities are outlined for the third party “trustee” in each case. An escrow agent serves as a fiduciary for both the buyer and seller, with duties assigned as outlined by the agreement between the two. A very narrow, limited relationship.

In a trust, the agent’s role is broader and more flexible. The trustee’s duty is to take care of the assets for the benefit of its beneficiary above all else, which can entail a number of different tasks (note: for Florida boat brokers the broker acts only as trustee, with no named beneficiary).”
Believe me the differences may seem minor – they are anything but. The key words you should remember regarding escrow (and not trust accounts) from the above are these:

1. Limited role.
2. Impartial third party.
3. Escrow instructions (detailed contract)

An escrow agent is completely independent from the transaction, and represents neither the buyer, broker or seller. Any monies paid and/or titles are kept separate and apart from the parties. The escrow agent is loyal only to the escrow instructions/contract which are typically long and specific. Much of the escrow agent's work deals with doing a thorough title search to find and resolve defects, and last to provide title insurance – a vital guarantee of the deal for both buyer and seller Best familiar example: real estate or property sales.

Real estate brokers, escrow and title insurance agents are all licensed and highly regulated. For example the laws and regulation in Florida for real estate are extensive, serious, tightly regulated and enforced.

Boat brokers – regardless of their bluster – are in general neither licensed nor regulated with very few exceptions (Florida being one). Even in Florida, the regulations are sparse – just 6 pages - and in no way compare to tightly regulated real estate transactions.

Don't confuse the two.

First of all, boat brokers are not impartial. In most cases they represent the seller, much less frequently the buyer, and almost never both. It is their job to be partial. Their listing agreements and purchase offers are short and simplistic, and in general rather self-serving. In most (non-regulated) states your earnest and pay off monies can and are often merged with their own funds and can be abused. To make matters worse, title searches are only hopeful, are not guaranteed, and there is no such thing as boat title insurance.

In short, in these states you're on your own, and can only hope the broker is honest, and won't go out of business while your deal is pending. Now let's discuss Florida.

It should be clear that the potential and actual abuses of boat brokers became of such concern that Florida felt obligated to establish some simple rules. The law set forth simple licensing, with minimal requirements, minimal bond and insofar as buyer funds, caused Florida brokers to establish a separate “Trust Account”. Naturally, such laws were heavily lobbied by the very active Florida Broker Mafia and thus the relevant section was kept short, simple and still left the brokers in charge.

How simple? The Florida section on Yacht Brokers is just 6 short pages (including their “separate Trust Account”, compared to over 100 for Real Estate brokerage, and hundreds more pages for real estate Escrow and Title Insurance. I'm not kidding. In comparison, the Florida boat brokers' section on “separate trust account” is a couple paragraphs.

Here are the facts:

A boat broker is almost never impartial, and either represents the buyer, or (sometimes) the buyer. In truth, the agreements tend to favor the broker (eg commission based on original listing price, not actual negotiated sales price, etc.).

Their listing and purchase offer agreements, are short, simple and self-serving, and serve only minimally as escrow instructions.

The Florida “separate Trust Account” is not really escrow. This account – unlike those of true escrow agents – is under the complete control of the very partial boat broker, who is listed as as “Trustee”. No beneficiaries are named, no separate trust agreement is filed. To comply with the few paragraphs of “regulations” the Florida boat broker needs only set up a separate “Trust Account”, keep simple separate records for it, and upon settling the deal to provide only a simple, itemized “closing statement”. As Trustee, the broker has great power and discretion (not so for escrow agents), under the minimal guidance of their simplistic listing and PO agreements.

Just as in the unregulated states, purchase deposits and payments are placed into an account established, owned and managed by the very partial broker, and subject to pretty much the same risks. The sole difference is a bit of bonding (probably not enough to cover all claims), and a potential third degree “felony” - but only if the broker fails to keep a separate log of the account, or to provide itemized closing statements.
If the broker goes bankrupt – the monies may be tied up for years in completing claims, litigation, damages and expensive court proceedings.

Of great concern too is the need for a good title search. Unless a boat has been constantly documented since first sale, it is extremely difficult to establish a solid trail of ownership. Some states don't provide titles and register only. All manner of unrecorded but legal liens may exist. There are few records of real history, damage, accidents and the like. The point?

Unlike real estate, boat brokers tend to perform minimal title searches, and at best may only use the same search engines we all can access. These engines are quite clear in that they while they can find some issues, they cannot guarantee the title – at all. Ergo? Ergo NO title insurance that I am aware of. You seem to be quite on your own.

Compare a boat broker's “purchase offer” with the much longer and much more detailed contracts used in real estate sales. Compare to the completely independent and impartial real estate escrow agents, who represent only the extremely detailed escrow instructions, who have no discretion beyond same, and who will guarantee and insure the title. Night and day.

So what to do?

I make no bones about it. I don't like the current state of minimally supervised boat brokers, and you can be sure a loud few will – once again – parse these words in search of uncrossed “T's”, with an eye toward rejecting the whole of this well intended long post. That's their track record. Easy, cheap arguments and wholly political Yes, there are absolutely a fair number of truly good brokers, but they are few and far between. Consider these few are worth their weight in platinum and you should work hard to find and cooperate with one.

As far as escrow goes, you would be wise to do the following:

1. Negotiate all purchase orders presented to you. Any broker who calls their own PO “standard” is misleading you. There are no “standard” agreements. Almost all are broker creations may be loosely based on YBAA forms, but are still modified in their own interest.

You are NOT required to put 10% down. The argument that by not doing so you are “not serious” is false; this is just a ploy to take you and the seller off the market. Remember YOU are taking the major financial risk and paying for an expensive survey – just to find out IF the boat is sound. Be especially careful regarding survey and trial clauses, to make clear that you may reject a boat for any reason and at your sole discretion.

2. Much better, create and use your own PO, based on minimum “earnest money”. Now it might be reasonable to increase the deposit, but only AFTER a successful survey. By doing so the risk is equalized: you, the buyer risk an expensive survey; the seller risks taking the boat off the market for a couple weeks. Even Steven.

3. Ask the broker how they search the title, using what service/resource, and to provide you a copy. A good broker should already have done this, to be sure the boat can actually be sold. Most don't until after a PO is received. Really. Strongly consider paying for your own search (there are a few good ones), but keep in mind that no search is guaranteed or insured.

4. Assemble your own quickie black doctor's bag of simple and inexpensive tools/meter, and learn how to use them (not hard). Do your own “30 minute Survey” (buy Don Casey's “Inspecting the Aging Sailboat”). Again, not hard. Not a bad idea to include a clause in your own PO that gives you the right to reject based on your own survey as well.

5. Hire your own true and independent escrow agent. Example: Escrow dot Com, widely used and respected, charges $267 for a $30K purchase. Don't even consider using a boat broker for faux-escrow purposes – I once asked two different brokers what they'd charge to handle a private transaction for us, and I was quoted around $1500 (for a $25K sale)! Amazing, considering the broker was asked to take no responsibility, but simply act as a neutral to accept, hold and then exchange money and title as directed by both parties. Funny how Escrow.com quotes just $267 for a MUCH more thorough and independent, true escrow service.

Frankly, these brokers were confused by the proposition, and seemed unable to comprehend a truly neutral and independent role. That's the point and this last – more than anything – should confirm the very real difference between a boat broker's “separate Trust account” and “services”, and with actual, detailed and independent escrow.

Carry on. YMMV. Get ready for the onslaught, lol...
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Old 23-11-2017, 20:39   #2
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Re: The facts about so-called boat “escrow”?

However I believe there are legit Escrow companies, these are I believe the same companies that will do a title search etc.
My deposit was deposited with an Escrow company, not my Broker. I would assume an above board Broker would not want the responsibility of having your money.
As with anything before stroking a sizable check, inquire where it is going .
Trust, but verify?
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Old 24-11-2017, 05:47   #3
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Re: The facts about so-called boat “escrow”?

Thanks for the detailed explanation and advice, Jimbo. Very valuable information!
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Old 24-11-2017, 06:33   #4
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Re: The facts about so-called boat “escrow”?

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Thanks for the detailed explanation and advice, Jimbo. Very valuable information!
+1. Thanks.
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Old 24-11-2017, 07:41   #5
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Re: The facts about so-called boat “escrow”?

Thanks. This is helpful.Helps to know your seller, if possible. In some circumstances an escrow account would be unnecessary, IMHO. Other than a search on state registration sites and boatyard vendors for any existing liens, what other title searches are possible? Seems as though the Purchase Agreement clauses, including lien-free title statements, are likely your only real legal protections against encumbered titles. Agree with the value of boat life USCG Doc history though that doesn’t preclude discovering a lien against the title by a local vendor. Given all of that, for experienced and cautious sailors there doesn’t appear much value for most brokers, IMO. Agree there are a few worth using or consulting but most just drive up the cost of purchasing or selling a boat without providing relative value.
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Old 24-11-2017, 09:39   #6
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Re: The facts about so-called boat “escrow”?

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Originally Posted by Capn Jimbo View Post
The facts about so-called boat “escrow”...

Background:

– why title insurance for boats is unheard of. No insurer is willing to take that bet.

An escrow agent is completely independent from the transaction, and represents neither the buyer, broker or seller.

Of great concern too is the need for a good title search.

Unlike real estate, boat brokers tend to perform minimal title searches, and at best may only use the same search engines we all can access. ..
Just a few points. First, Title Insurance is Available for Boats, so not unheard of. First American was one of the first to offer it around 2000. They offer all forms of transportation title insurance and vessels is one. Now others also offer it. Documentation services have access to it. Note it's mention on ASAP's page. ASAP Marine Documentation and Registration, Inc.

As to escrow services, Documentation services are in a position to provide it. They come the closest to Title Agencies for homes.

As to title searches, neither a realtor nor a boat broker is qualified to do such a search. Documentation services generally are.

Even if you're not documenting a boat, the use of a documentation service may be worthwhile. They can work on your behalf.

As to the comments about broker's trust accounts or escrow accounts and realtor's escrow accounts, I agree. I'd trust FL law to protect small amounts but not large amounts. However, with a realtor, I also would be reluctant to put large amounts in their escrow accounts which they have control over, but instead escrow accounts managed by title agencies.

Documentation agencies or services are the nearest boats have to title agencies.

You mention terms of contracts and offers. Same issue in real estate where everyone likes to hand you a state form, just better vetted in real estate. However, you absolutely are right that all terms are negotiable. Real Estate earnest money is generally 1-2% and often even lower. 10% seems very excessive to me. Maybe on a $10,000 boat but definitely excessive on a $1 million boat. That exacerbates the factor of escrow too. If it's $500 earnest money then I'm not nearly as concerned as if it's $50,000. Even worse than going through brokers is when you're buying from an individual and they want you to give them a large down payment.

I do not share your general disdain for brokers and don't like your name calling including terms like "Florida Broker Mafia." However, I do agree with your cautionary warnings about escrow. On title insurance, you're just not well informed. It is available although few have it.
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Old 24-11-2017, 09:51   #7
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Re: The facts about so-called boat “escrow”?

-I agree that it's "the wild west" out there with brokers.
-I agree that a Broker's standard sales document may be faulty or biased toward concluding the sale. (I once sold a boat thru a broker whose contract didn't include an expiration date for counteroffers. I gave a counteroffer that was never accepted. Then we sold to boat to someone else at full price. It ended up a legal can of worms)
-I have used a Documentation Service as Escrow agent for a sale involving boats that were not actually located in the US , although US titled and it all worked out fine.
-Some boats are as expensive as real estate, so yes, be careful and if it's a big enough sale, use a real escrow agent.
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Old 24-11-2017, 09:58   #8
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Re: The facts about so-called boat “escrow”?

I wonder why the OP who has never used the services of a brokerage to buy or sell a boat is so worked up?

Maybe on his 50 boat Looky Lou boat inspection tour last year he was disrespected by a broker who didn't take him seriously?

Yacht Brokerage is an industry particularly in FL. Where are all the complaints from those who have suffered as a result of dealing with them?

How many brokers are in criminal or even civil court at any given time? LOL

I suggest that the OP wipe the spittle off his chin and get on with his life.

That Columbia 26 of his isn't going to sail itself.
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Old 24-11-2017, 10:10   #9
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Re: The facts about so-called boat “escrow”?

I'm not familiar with Federal documentation but suspect it is much like state registration. In title states, once the title has been registered to the new owner, that's it. No previously unregistered liens are enforceable; not for boats, cars or mobile homes. As for earnest money, your protection is your contract. The terms are enforceable against the seller or the broker acting on his behalf. Dealing with established firms is generally pretty good protection but for large amounts I would get legal advice before signing the contract.
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Old 24-11-2017, 10:35   #10
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Re: The facts about so-called boat “escrow”?

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Originally Posted by sailpower View Post

How many brokers are in criminal or even civil court at any given time? LOL
How many should be that aren't?

I'm just entering the real estate industry as a second career, got tired of designing subdivisions and condos and thought I might try selling the homes within them. It's a wonder the yacht brokerage industry functions as well as it does with such little oversight. I see it all the time in yacht ads, now that I know what to look for, disclosures and advertising practices that would have them in hot water, and civil court in some cases, if they were selling a house.

I'm with Jimbo, need to be careful. I'm with other posters, too, not all brokers are scum. I'm in the middle.
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Old 24-11-2017, 11:20   #11
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Re: The facts about so-called boat “escrow”?

Thanks Jimbo.
Excellent article.
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Old 24-11-2017, 11:52   #12
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Re: The facts about so-called boat “escrow”?

I used a Documentation service for our two purchases and was very happy with the service they provided and detail to which they were willing to go make me and I assume they seller happy. For foreign transactions especially, I can not emphasize how important it is to have your Documentation Service in your home country.
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Old 24-11-2017, 12:16   #13
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Re: The facts about so-called boat “escrow”?

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How many should be that aren't?
I give up. What's the number?

These nonsensical broker threads show up all the time. Many started and/or populated by people who have never bought or sold through a broker.

Should buyers/sellers beware? Always and no matter what the purchase or sale.

Is there an industry wide broker problem in the yacht industry? Of course not.

It is silly to suggest otherwise. Are there buyers/sellers who were or "feel" cheated? Of course there are. Show me a sales or professional industry where that is not the case? Statistically it appears to be insignificant here. Of course that doesn't matter to the one who might be cheated but overall? Please.

If it were a huge problem in the yacht industry who would use brokers? They would be out of business.

The money in brokering is at the upper end. High net worth buyers and sellers are not fools. They sure as heck don't want to waste their time dealing directly with non professionals so they use a middleman whom they trust. Would they do that if the industry was corrupt? Of course not.

Anyway, always entertaining to read a good rant.

For even more fun perhaps the OP would care to share what he does for a living? I'm sure the brokers here will have their own stories to tell about that.
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Old 24-11-2017, 12:24   #14
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Re: The facts about so-called boat “escrow”?

The most profitable segment of the market is the smallest.

Word of mouth reputation is the gold ring to future success.

Con artist scammers are soon gone, fly by night.

Victims create their own problems looking to cut corners.

Above is true for all sectors of luxury high-value markets.
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Old 24-11-2017, 13:16   #15
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Re: The facts about so-called boat “escrow”?

Thanks for a well researched post,Jimbo! Like with the other one, very informative and very useful to me, as I am in the UK. Therefore not familiar with what is really "standard" in the USA brokerage business, and what is simply purported.
I cannot in good faith find any broker bashing, in what you wrote. My own experience with (un)licenced brokers in the USA and here has been dismal. It is what they made it, plain and simple. I hope to cross paths with the true professionals, and hope we both benefit. The true professionals among you must be as cheesed off with the chancers as we are. Get rid of them.
After my experiences I will not pay a penny to any broker, until I am satisfied that I am making a true_ not a provisional_ offer to purchase. This means, that my Marine Engineering Consultant has been through the boat and the systems and recommends it to me for further attention. I trust him, his expertise and ethics implicitly. He comes at a price, which is in the scope of things a bargain with the peace of mind he provides. And he works for me. I tried the "buyer's broker" route. I was overcharged by a minimum of 500k each time a boat was presented.
That works out at a 50k USD commission drop before a final price is even arrived at. Those brokers have my interests at heart? Not likely.
I was offered 50ft multi hulls, planing hulls, short range boats which were bay boats at best. No maintenance or equipment records. No internal space measurements of the accomodations. I asked for a spacious, ocean going 80 or so ft long range trawler yacht. To serve as our year round live aboard, suitable for serious weather. All systems easily accessible in the engine room and throughout the boat. Offered were engine rooms fit for an Olympic gymnast. Wiring, plumbing a bowl of spaghetti. In a seaway, a very dangerous bowl of spaghetti. I was misled with regard to base price, and offered what I specifically did not want.
I must pay the people who were this incompetent, or worse, 200_300k USD into some account controlled by them, and then the balance of say 3m/m USD.?? At best, they are bonded for 25k. That does not cover me at all, should they have ignored the escrow obligations. Incidentally, the worst brokers I dealt with were the licenced ones, in California and Florida. All they wanted was a PO. The rest would be sorted later. Every time a coconut. Mostly working from pictures in boats for sale forums, repeating what was already there and not bothering to familiarise themselves with the boats they offered. But hammering home the waiver at the end of the description. Meaning: I really have no idea and don't quote me or hold me to anything I say. Just sign, and pay 10% down, it is how we do things here. My foot!
I am very pleased to note, that I can keep control of my funds until I pay for the boat, free of encumbrances and liens and get full title. And should it come to a haul out and a survey, I am not at risk of legal wrangling and have money tied up deciding if I am entitled at my sole discretion to proceed or call it a day.
I suggested a firm of Florida Attorneys specialising in documentation to a licenced broker, who was having none of it. These attorneys would also have completed any Due Diligence with regard to the funds they would hold in escrow, and supply proof of funds to the seller. Not "standard" and not acceptable. And" very expensive", he could do the paperwork included in his commission. Very pushy, and I could not get it through to him that the legal fees were for my account.
I have no idea, what if any, mistique is involved in being a yacht broker and why different standards should apply to their rights and standards of service delivery. Your articles and many of the constructive and informative comments have set that matter straight.
I feel sorry for the sellers, who are in the hands of these brokers. Perhaps the heavily inflated prices I was quoted served to bait the hook to get an exclusive listing.
A word to the brokers: someone like me will first want to know if the boat is actually competent to be sold, the state and age of equipment and ancillaries, the full and detailed maintenance records of the lot before we proceed to fly over to have a look, or commission our expert to inspect and report that it is worth taking things further, or walk away. If you do not have the information requested well up front, at hand, you are of no earthly use to us. We don't want boats referred to us for the sake of it. If we have that kind of time, we can browse the boats for sale websites ourselves. Actually, my wife has started doing this out of sheer frustration.
I look forward to the next installment of " how to deal with brokers, escrow" and sensible offers to purchase!
Thank you all for contributing, your comment are equally enlightening! Fair winds to you all!
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