The Real Estate Rule imposes a limited but strict recordkeeping obligation. This article identifies which records must be retained, which parties must retain them, and how to build retention into a closing workflow.
Current status (October 2026): The Residential Real Estate Rule was vacated by a federal court on March 19, 2026 and is not currently enforceable. FinCEN has appealed, and the rule may be reinstated. The requirements below apply when the rule is in effect. For the current legal position, see Is the FinCEN Real Estate Report Still Required in 2026?
The records that must be retained
Two records are subject to retention under the rule, each for five years.
The beneficial ownership certification. The reporting person must retain a copy of the certification, signed by the transferee or the transferee’s representative, attesting to the accuracy of the beneficial ownership information. This is the document that supports the reporting person’s reliance on that information, as explained in Beneficial Ownership Under the Real Estate Rule.
The designation agreement. Where the filing obligation was reassigned by a designation agreement, a copy of that agreement must be retained.
What does not need to be retained
The reporting person is not required to retain a copy of the filed Real Estate Report. This was a deliberate change from the proposed rule, which would have required retention of the full report. Nor is the reporting person required to keep copies of driver’s licenses, passports, or other identification documents, or the underlying identifying information of beneficial owners and signing individuals.
Offices that want their own copy of the report should save the transcript at the time of filing. The BSA E-Filing System shows submission status and history but does not store a retrievable copy of the report. The filing steps are described in How to File a Real Estate Report: Step by Step.
Who must retain records
The obligation does not rest on the reporting person alone.
The reporting person must retain the beneficial ownership certification and any designation agreement to which it is a party.
Every party to a designation agreement must retain a copy of that agreement, whether or not it is the party that files. A title company that designates its underwriter to file, for example, still holds its own five-year retention obligation for the agreement it signed.
Designation agreements are retained, not filed. They are not submitted to FinCEN with the report.
Records of delegated filing
A reporting person may authorize a third party to submit reports on its behalf. FinCEN does not require a specific record of that authorization, but because the reporting person remains responsible for every filing, it should keep a record of whom it has authorized to file and for which transactions.
Building retention into the closing workflow
Because both required records are created before or at closing, retention can be handled as part of the closing file rather than as a separate post-filing task.
Collect the certification before closing. The beneficial ownership certification should be obtained and reviewed before funds are disbursed, so that any gaps can be resolved while the transferee is still engaged.
Execute the designation agreement for each transaction. A standing understanding between regular transaction partners does not replace a transaction-specific agreement, and only an executed agreement satisfies the retention requirement.
Store records in a consistent, retrievable location. The rule specifies what must be kept and for how long; it does not prescribe a particular storage system. What matters is that the records can be located and produced on request for the full retention period.
Calendar the end of the retention period. Tying the retention end date to the closing date allows records to be managed consistently and disposed of in line with the office’s broader record retention policy.
These steps fit within the wider readiness plan set out in Preparing Your Office for the FinCEN Real Estate Report, alongside deadline tracking as described in Real Estate Report Filing Deadlines.
Consequences of failing to retain records
A failure to retain required records is a violation of the rule regardless of whether the report itself was filed correctly. It also weakens the reporting person’s position if the accuracy of beneficial ownership information is later questioned, because the certification is the basis for reasonable reliance. The applicable penalties are set out in Penalties and Liability Under the Real Estate Rule.
Recordkeeping during the vacatur
No retention obligation applies while the court’s order remains in force. Offices that continue collecting beneficial ownership certifications on entity and trust transactions in the meantime will be able to resume compliance without rebuilding their process if the rule is reinstated, as discussed in If the Real Estate Rule Is Reinstated. To confirm whether a specific transaction would require these records, use the Do I Need to File tool or contact us.
