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S7352Senate2019-2020 SessionSame asA488

Escrow Funds for Construction Retainage

Official title

“Provides for a reasonable amount of construction contract sum to be deposited in a separate interest bearing escrow account with a third party escrow agent”

Sponsor Anna KaplanSD-7Affects Public Safety & Consumer Affairs
Status
In Senate Committee
Consumer Protection
Impact
5/10
Moderate
Passage
0%

Bill progress

Step 2 of 7

In committee · Consumer Protection

What's happening

This bill requires retainage on most private construction contracts to be held in a separate interest-bearing escrow account and sets penalties for late release.

Why it matters

  1. Requires owners in most private construction contracts to place retainage in a separate, interest-bearing escrow account controlled by a third-party agent, rather than holding the funds themselves. This increases transparency and reduces the risk that owners will misuse or delay payment of retained funds.

  2. Mandates that retainage funds, including any interest accrued, become the sole property of the contractor once deposited in escrow. This ensures contractors have greater financial security and can benefit from the interest on money owed to them, rather than the owner.

  3. Sets stricter timelines and financial penalties for late release of retainage. Owners must instruct the escrow agent to release the funds within 30 days of final approval of work, and contractors/subcontractors must pass on retainage within five days of receipt. Failure to comply triggers a 1% monthly interest penalty (in addition to escrow interest), creating a real cost for payment delays.

  4. Excludes construction contracts financed by public benefit corporations, focusing the new requirements on private sector projects. This means public projects or those with certain types of financing remain subject to different rules, while most private construction is covered by these new protections.

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Who cares

  • Construction project owners

    Owners would have to place retainage in a separate interest-bearing account with a third-party escrow agent, except for contracts financed by a public benefit corporation.

  • Construction contractors

    Retained funds would become the contractor’s sole property upon deposit, earn escrow interest and remain subject to release within 30 days after final approval of the work.

  • Contractors and subcontractors holding retainage

    They would have to release proportionate retainage within five days after receiving escrowed funds or owe interest of one percent per month on overdue amounts.

  • Third-party escrow agents

    They would hold retainage separately, provide interest at least equal to their prevailing deposit rate and deliver the funds upon the owner’s written direction.

Headline styles

Escrow Funds for Construction Retainage

Plain English, a few words. Used as the page title.

Sponsors

Primary sponsor
Anna Kaplan

Senator · Senate District 7

Chair, Commerce, Economic Development And Small Business

No co-sponsors yet.

History

  1. Referred to consumer protection

Companion bill

The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.

A488Assembly

Escrow Construction Retainage Funds

In Assembly Committee · Economic Development · Sponsor Edward Braunstein

Impact 6 · Moderate0% to pass

Full text

2 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗

STATE OF NEW YORK

7352

IN SENATE

January 21, 2020

Introduced by Sen. KAPLAN -- read twice and ordered printed, and when printed to be committed to the Committee on Consumer Protection

AN ACT to amend the general business law, in relation to retention of construction contracts

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Section 756-c of the general business law, as added by chapter 127 of the laws of 2002, is amended to read as follows:

§ 756-c. Retention. By mutual agreement of the relevant parties an owner may retain a reasonable amount of the contract sum as retainage[. A] and for any construction contracts, excluding construction contracts financed by a public benefit corporation, such retainage shall be deposited in a separate interest bearing escrow account with a third party escrow agent. As of the time of the deposit of the retainage, the retained funds shall become the sole and separate property of the contractor. Interest on the retained funds shall accrue at an interest rate at least equal to the prevailing interest rate paid on deposits by the escrow agent. Also, a contractor or subcontractor may [also] retain a reasonable amount for retainage so long as the amount does not exceed the actual percentage [retained] deposited in escrow by the owner. [Retainage] The escrowed retainage shall be released by the [owner] owner's written direction to the escrow agent to deliver the escrowed retainage to the contractor no later than thirty days after the final approval of the work under a construction contract. In the event that an owner fails to release the escrowed retainage as required by this article, or the contractor or subcontractor fails to release a proportionate amount of retainage to the relevant parties within five days after receipt of the escrowed retainage from the owner, (i) the owner[, contractor, or subcontractor, as the case may be, shall be subject to the payment of interest at the rate of one percent per month on the date retention was due and owing] shall be subject to the payment of interest, in addition to the escrow interest, at the rate of one percent per month commencing on the date the retainage was due to be released from escrow; and (ii) the contractor or subcontractor, as the case may be,

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD02665-01-9

S. 7352 2

shall be subject to the payment of interest on the amount of retainage it holds at the rate of one percent per month commencing on the date the retainage was due to be released by such contractor or subcontractor.

§ 2. This act shall take effect immediately and shall apply to all contracts entered into on or after such effective date.

Reflowed for reading: line numbers and page breaks removed. Cite the official text.

Sponsor's memo

Title of bill

An act to amend the general business law, in relation to retention of construction contracts

Purpose of the bill

This bill would require retainage held on private construction projects to be placed in an interest-bearing escrow account for the benefit of the parties from whom the retainage is being held.

Summary of specific provisions

This bill accomplishes a much needed construction industry reform. Owners would continue to have added security of holding retain age on progress payments. However, the interest on the held money would be earned for the benefit of the parties, from whom retainage is being held, thus taking some of the sting out of having significant amounts of earned money held for substantial periods of time.

Justification

Retainage is the practice of withholding a portion of the earned progress payment of a construction contractor, subcontractor or supplier (hereinafter the "contractor") for work performed, for release at a later time. Retainage is a long-standing tradition in the building industry, and unique to the construction process, as it withholds funds already earned by the contractor.

Retainage represents money which has been previously earned by contrac- tors.-That is, retainage is already the subcontractor's money. As such, it is the contractors from whom retainage is held who should benefit from investment earnings on that money. Furthermore, by having retainage placed in an escrow account, contractors will have far more assurance that they will actually receive the money which they have earned in the event an owner's financial status becomes questionable later on.

Prior legislative history

2001-2002: A.6817/A.9711/S.3708-A - Referred to Rules.

2003-2004: A.4620-C/S.1089-B - Referred to Codes.

2005-2006: A.2721/S.2547 - Passed Assembly in 2005 & 2006.

2007-2008: A.9538/S.1660 - 3rd Reading. Cal.817.

2009-2010: A.2279/S.754 - Passed Assembly in 2010.

2011-2012: A.5023/S.3180 - Referred to Codes.

2013-2014: A.529/S.1717 - 3rd Reading, Cal.184.

2015-2016: A.10276/S.37 - Referred to Economic Development.

2017-2018: A.1294/S.5871 - Referred to Economic Development.

Fiscal implications

None.

Effective date

Immediately.

Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.