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Navigating Escrow in Real Estate Transactions: Key Considerations; Escrow Instructions; Compliance; Duties; Remedies

Recording of a 90-minute premium CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, September 19, 2023

Recorded event now available

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This CLE webinar will address navigating escrow through the life cycle of a real estate transaction's closing. The panelists will provide an overview of the escrow process and describe best practices for real estate counsel to guide their clients through closing--from carefully drafting/amending precise escrow instructions to recovery options for their clients if the instructions are not strictly followed.


While escrow agents are commonly used for closing real estate transactions, the escrow process can be complicated, requiring the navigation of relationships between the various entities involved, including parties to the escrow, escrow agents, and title insurers. Understanding escrow is essential for real estate counsel and litigators.

One of the most crucial considerations for counsel is the content of the escrow instructions, which should clearly outline the duties of the parties and escrow holder as well as details of the transaction. Whether drafting the instructions themselves or amending the escrow agent's form language, counsel should understand the relationships between all those involved, the duties owed, liability risks, and any state-specific requirements governing the escrow before proceeding.

Once the parties enter escrow, counsel should be mindful of how the escrow operates, including any administrative requirements, so as to successfully guide their clients through the transaction's closing.

Where any of the parties, the escrow agent, and/or title insurer fail to strictly comply with the instructions, counsel should be aware of recovery options including possible causes of action and how to prepare their case for litigation.

Listen as our expert panel discusses key considerations and issues related to the escrow process, including best practices for drafting/amending escrow instructions, understanding the duties owed between the process participants, and how to prepare for recovery in case of noncompliance with the instructions.



  1. Introduction to escrow
  2. Initial considerations
    1. Parties and non-parties to escrow
    2. Types of escrows/settlements
    3. Escrow agents
    4. Escrow agent's relationship to title insurer and to the transaction's parties
    5. State-specific considerations
  3. Operation of an escrow
    1. Drafting/amending escrow instructions
    2. Opening and closing an escrow
    3. Dangers of fraud
    4. Administrative considerations
    5. Liability of escrow holder
  4. Recovery options for noncompliance with the instructions
  5. Escrow claims and litigation
    1. Potential defendants
    2. Causes of action and limitations
    3. Proving the plaintiff's case
    4. Proving the defendant's case
    5. Other considerations
  6. Best practices to mitigate risk and limit liability


The panel will review these and other important issues:

  • What is the relationship between the parties to the transaction, the escrow agent, and the title insurer?
  • What should be included in the escrow instructions to best protect the parties to the escrow?
  • To what extent should escrow parties' counsel be involved in the escrow process?
  • What are methods of recovery from the escrow agent and/or title insurer if the transaction is not closed in strict compliance with the escrow instructions?
  • What are potential claims that the parties to the escrow can make if the escrow instructions are not strictly followed?


Goldstein, Jason
Jason E. Goldstein

Shareholder, Co-Chair Mortgage Banking Group

Mr. Goldstein specializes in resolving complex business disputes for a diverse cross-section of clients, ranging from...  |  Read More

Hosack, John
John L. Hosack


Mr. Hosack focuses his transactional practice on commercial real property loan documentation, loan workouts, REO sales...  |  Read More

Long, Joffrey
Joffrey G. Long

Private Money Lender

Mr. Long has been active as a private money lender for more than 41 years. He has also been qualified by numerous...  |  Read More

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