Section 37-11-90 - Certain entrance fees or reservation deposits to be placed in escrow account; release of funds; exemptions from provisions of this section(A) A continuing care retirement community is exempt from the provisions of this section if: (1) it has been operating for at least five years;(2) for the previous six months it has maintained at least the minimum occupancy rate estimated in its financial feasibility study to achieve a break-even cash flow operating level or seventy-five percent occupancy, whichever is less.(B) If an entrance fee or reservation deposit is received by the operator before the date the resident is permitted to occupy a living unit in the facility, the total amount must be placed in an escrow account with a trust institution.(C) Entrance fees may be released from escrow to the operator only as follows:(1) If the entrance fee applies to a living unit that previously has been occupied in the facility, the entrance fee must be released to the operator when the operator provides written certification that the living unit is available for occupancy by the new resident.(2) If the entrance fee applies to a living unit which previously has not been occupied by a resident, the nonrefundable portion, if any, of the entrance fee must be released to the operator when the operator provides written certification that the living unit is available for occupancy. The refundable portion, if any, of the entrance fee must be released to the operator when the operator provides certification to the escrow agent that the following has occurred: (a) construction or purchase of the living unit has been completed, and an occupancy permit, if applicable, covering the living unit has been issued by the local government having authority to issue the permit;(b) a commitment has been received by the operator for a permanent mortgage loan or other long-term financing, and conditions of the commitment before disbursement of funds have been satisfied substantially;(c) aggregate entrance fees received or receivable by the operator pursuant to binding continuing care retirement community contracts, plus the anticipated proceeds of any first mortgage loan or other long-term financing commitment, are equal to not less than ninety percent of the aggregate cost of constructing or purchasing, equipping, and furnishing the facility plus not less than ninety percent of the funds estimated in the financial feasibility study required by Section 37-11-30 to be necessary to fund cash shortages during start-up and assure full performance of the obligations of the operator pursuant to continuing care retirement community contracts.(D) A reservation deposit may be released only as follows:(1) When a prospective resident who has entered into a reservation agreement and paid a reservation deposit later enters into a continuing care contract with the continuing care retirement community, the reservation agreement terminates and the reservation deposit shall be credited in full towards the entrance fee. Thereafter, the funds shall remain in escrow until the requirements of subsection (C) or (E)(3) are met.(2) Reservation deposits may be refunded to the prospective resident at any time. The operator must provide the form to be used to request disbursement of funds from the trust institution to the prospective resident. The form must list the total disbursement amount and must certify that the prospective resident has sent written notice to the provider requesting a refund and that either: (a) the prospective resident has rescinded his reservation agreement; or(b) the reservation agreement has been terminated by the prospective resident or operator in accordance with its stated terms.(E)(1) Upon receipt by the escrow agent of a request by the operator for the release of the escrow funds, the escrow agent shall approve release of the funds within five working days unless the escrow agent finds that the requirements of subsection (B) have not been met and notifies the operator of the basis for this finding. The request for release of the escrow funds must be accompanied by documentation the trust institution requires.(2) If the operator fails to meet the requirements for release of funds held in this escrow account within a time period the escrow agent considers reasonable, the funds must be returned by the escrow agent to the persons who have made payment to the operator. The escrow agent shall notify the operator of the length of this time period when the operator requests release of the funds.(3) An entrance fee held in escrow may be returned by the escrow agent to the person who made payment to the operator at any time upon receipt by the escrow agent of notice from the operator that this person is entitled to a refund of the entrance fee.(4) The escrow agent shall be entitled to rely upon the written notices, instructions, and directions of the operator and shall have no liability for any action taken based upon such reliance. However, the escrow agent shall be liable for its own negligence or wilful misconduct.Amended by 2022 S.C. Acts, Act No. 197 (HB 4983),s 6, eff. 5/16/2022.1989 Act No. 97, Section 1.