Title: Section 901.3 - Entrance fee escrow account
901.3 Entrance fee escrow account. (a) In order to advertise and collect refundable entrance fees and deposits subsequent to the issuance of a certificate of authority but prior to substantial completion of construction or purchase of the community or approved phase of the community, issuance of an occupancy permit and the availability of the unit for occupancy, the operator shall:
(1) establish a federally insured interest-bearing account with a New York bank, New York savings and loan association or New York trust company for the deposit of such fees and deposits; and
(2) enter into an escrow agreement with the bank, savings and loan association or trust company which shall state that:
(i) the purpose of the agreement is for the protection of the prospective resident; and
(ii) the escrow agent shall release all or portions of the funds on deposit including interest accrued or earned from investment of funds at prevailing rates to the operator or resident as directed pursuant to subdivisions (e)-(g) of this section or upon order of a court of competent jurisdiction.
(b) All checks, drafts and money orders for deposit from prospective residents or their legal representatives shall be made payable to the escrow agent only.
(c) All funds deposited in the escrow account shall remain the property of the prospective residents or their representatives until release of such funds to the operator pursuant to subdivision (e) of this section, and the funds shall not be subject to any liens or charges by the escrow agent or judgements, garnishments or creditor's claims against the operator or community.
(d) The escrow agent shall issue a statement indicating the status of the escrow account upon request of the operator, the Commissioner of Health, the Superintendent of Insurance or the resident.
(e) The escrowed funds including earned interest shall be released by the escrow agent to the operator upon order of a court of competent jurisdiction or upon notice by the Commissioner. Such notice shall be provided upon presentation to the Commissioner of evidence of compliance with the following conditions:
(1) substantial completion of the construction or purchase of the community or phase of the community if the community was approved by the Life Care Community Council to be established in phases;
(2) issuance of an occupancy permit covering all of the living units in the community or in an approved phase of the community by the local government having authority to issue such permits; and
(3) availability for occupancy of the specific living units for which deposits have been collected.
(f) The escrowed funds shall be released by the escrow agent to the person who paid the fee upon order of a court of competent jurisdiction or upon receipt of notice from the operator that such person or his or her representative is entitled to a refund pursuant to section 901.4 of this Part. The interest income earned on such funds shall be returned to the person who paid the fee or his or her representative.
(g) If the funds are not released to the operator due to revocation, suspension or annulment of the certificate of authority pursuant to section 901.16 of this Part then such funds shall be returned by the escrow agent to the persons who made payments to the operator upon notification to the escrow agent by the Commissioner of such revocation, suspension or annulment.
(h) Any nonrefundable application fee that has been so designated in the contract shall not be subject to the provisions of this section.
VOLUME E (Title 10)