What happens when a buyer doesn’t pay the earnest money and/or termination option fee in a residential contract?
If the contract has been properly executed by all parties, there is still a binding contract even when the buyer hasn’t deposited the earnest money. The earnest money is not consideration for the contract.
However, if the buyer does not deposit the earnest money with the escrow agent within a reasonable time after contract execution, the buyer would be in default, and the seller could exercise her rights under a default provision.
The termination option fee is handled differently. If the buyer does not pay the option fee within the required three days, the only consequence is that the buyer does not have the option to terminate. The buyer is not in default, and the parties must continue to perform under the terms of the contract.
I’m very happy to see you clarify this. All to often I see parties, & brokers alike thinking that “earnest money” is consideration. This is not true. The consideration of the contract is the agreed purchase price. Earnest money is NOT a requirement to validate a contract. Somewhere along the way the term “earnest money contract” got tagged on what is nothing more than a purchase agreement of contract.. As it currently stands, the contract says “UPON EXECUTION BUYER SHALL DEPOSIT.” Nothing at all suggestive or ambiguous about UPON EXECUTION. Reasonable time is a “suggestive term.” I have heard that… Read more »
So what happens if buyer signed the P/S and before given earnest money changed his mind…The seller hasn’t even signed nor excepted the offer yet.,
I have a question. I put down $2k down fro my earnest money and all parties signed the papers. I’ve been living in my house for almost a year now. In the beginning, I was asked to pay $2,200 but when it came down to depositing the money, they asked for 2k. After signing, the mortgage closes said there was a mistake and asked for the other $200. Do I need to pay this?
I have requested proof of this deposit but got no answer.. we are headed to closing on the 30th of may can I cancel this contract
offer has been accepted but still nothing
I’m very happy to see you clarify this. All to often I see parties, & brokers alike thinking that “earnest money” is consideration. This is not true. The consideration of the contract is the agreed purchase price. Earnest money is NOT a requirement to validate a contract. Somewhere along the way the term “earnest money contract” got tagged on what is nothing more than a purchase agreement of contract.. As it currently stands, the contract says “UPON EXECUTION BUYER SHALL DEPOSIT.” Nothing at all suggestive or ambiguous about UPON EXECUTION. Reasonable time is a “suggestive term.” I have heard that… Read more »
Sorry David, but the agreed price is NOT the consideration. The formation of a real estate contract requires “consideration” for the contract to be binding. In general, the buyer’s promise to buy and seller’s promise to sell is consideration. Although the TREC contract forms include a provision for the deposit of earnest money, if the buyer fails to deposit the earnest money the buyer is considered in default of the contract, and the other party may then exercise the remedies under paragraph 15 of the contract. However, TREC is unable to make a determination as to whether your contract is… Read more »
Mr Bray you are wrong on the second business day.Had the discussion with TREC.Judge will just laugh or just be infuriated that your wasting their time!Call them Monday.
Mr. Bray, I’m sorry to be a disappointment to you & your theory about consideration but you are severely mis-informed it would seem. Per basic contract law (and the OP here) consideration of the contract is in fact the agreed purchase price on the contract. It is never the earnest money. As previously stated here (and other threads on this board) a contract can exist (though not very likely in current market) without any earnest money. As I stated previously, there is no requirement of when the earnest money gets deposited other than UPON EXECUTION as stated in the 1-4… Read more »
So, Mr. Davis, it would seem that you are an attorney, or at least you come across as such – “Per basic contract law (and the OP here) consideration of the contract is in fact the agreed purchase price on the contract”. And I am quite familiar with who Chuck Jacobus is, having served along side of him, for 6 years on the Broker/Lawyer Committee, not just attending one of his classes as many have. And, BTW, they have Co-Chairs, one attorney, one broker, and there is no hierarchy. And, as fas as you being “sorry to be a disappointment… Read more »
elpasoblogger, Welcome to the conversation (I see no prior comments or posts here by you), so your comment “the language that I provided is straight from the TREC website, and the teaching material they gave us for the Legal Update MCE courses (are you due for a renewal?).” seems just a tiny bit out of context. When/where did I even contradict you here? Your other comment “And, BTW, they have Co-Chairs, one attorney, one broker, and there is no hierarchy.” is self contradicting. The first part is admitted to, as we all know that there are Co-Chairs on the committee,… Read more »
Mr Davis very few judges are going to want to spend their time deciding if someone hasn’t turned in or not turned in a $2500 check.The wording is horrible and has always been that way.Wasting the court systems time just infuriates judges when a time table solves everything.It needs to be 3 working days from the time the contract is executed.
Mr. Payne, I agree with you the wording needs to be addressed. I have heard rumor that it is going to be addressed. The way you get something done about it, is contact the Broker Lawyer Committee and request it. You can even attend their meetings. (I’ve done so.) However for now the wording is UPON EXECUTION in the 1-4 contract. I stated in my original reply to this post that filing a lawsuit because a Buyer didn’t turn over earnest money until the next business day after execution (especially when effective date/time of a contract starts after business hours)… Read more »
It is TOO often, not TO often. I didn’t read past that.
Actually it is TO not TOO. TOO means also.
Taught high school English for several years pretty sure I’m not wrong on this.
Too, as in “too much”. I speaked English all my life and to just ain’t right
Andrea, I hope you didn’t teach high school English too long:
to a higher degree than is desirable, permissible, or possible; excessively.
“he was driving too fast”
synonyms: excessively, overly, over, unduly, immoderately, inordinately, unreasonably, extremely, exorbitantly, very; informaltoo-too
“invasion would be too risky”
2.
in addition; also.
“is he coming too?”
synonyms: also, as well, in addition, additionally, into the bargain, besides, furthermore, moreover, on top of that, to boot, likewise
“he was unhappy, too, you know”
“Also” is the second definition of too. “To a higher degree than is desirable, permissible, or possible; excessively” is the most commonly used application of the word “too.”
There are two pronunciations of “to,” to͞o and tə. If you are a native English speaker, an easy way to decide on the appropriate spelling is to say the phrase in your head and use the second pronunciation. If it sounds ok, use “to.” If is sounds incorrect, use “too.”
Nanette is correct
I’m glad you weren’t teaching any of my kids, LOL!
REASONABLE TIME is ambiguous and subjective. Like all time sensitive matters it should have a specific amount of time. MHO.
It does. The last time I looked at a 1-4 contract it said “UPON EXECUTION of this Contract by all parties, BUYER SHALL DEPOSIT…”
Regarding the subject of paying the Option Fee in 3 days. On more than one occasion, I have seen the Buyer’s agent think they have satisfied their Buyer’s requirement to have an Option Period by simply dropping off the Option Fee check with the Earnest Money check at the Title Co. w/in the 3-day window. Right or wrong?
The option fee has to be delivered to the agent or seller. Dropping it off at the title company does not satisfy.
A buyers agent should NOT be taking an Option Check to the title company. Period. That is simply called laziness (unless they are a new agent & don’t realize). That check is delivered to you or your seller and the buyers agent should be coordinating with the sellers agent on how best to get that done – who it goes to and when.
Wrong – it is not the Title Co’s responsibility to ‘receipt’ the Option check. The Buyer’s agent is supposed to TAKE the Option check to the Listing Agent – who may receipt it or have the Seller receipt it.
The Buyer is counting on their agent to get it receipted within the 3 day time period to PROTECT their right to Terminate during the Option period. The Buyer’s agent should make sure to get a signed & dated copy of the receipted page for his file.
WRONG- the option fee delivery is between buyer and seller, unless the seller instructs agent to accept and then deliver, that duty is the responsibility of the buyer. Usually an over night mail delivery or drop off at specified location other than title (unless permission is given, not their duty either) The agent is responsible for the delivery of he Earnest Money to the title with in time specified.
I would like to know if you can get your option money back
I didn’t get on here to learn grammar
Agreed! Too many grammar nazi’s!
Well, if you’re sloppy in your language, you will most likely be sloppy in your business.
I am tired of seeing and hearing “sorry” English spoken and written. I think a quick grammar lesson is good, BUT, that may have been more of a typo than incorrect grammar 🙂
I think the “explanation” shows it is incorrect grammar rather than a typo.
Two times too equals time to shut this thread down. Too 2 to confused.
while earnest money might not be a requirement to make a contract binding, that does not prevent a seller from insisting on having earnest money in his or title company’s possession before they execute. Personally, I advise my seller clients to not respond affirmatively to offers that aren’t accompanied by earnest money. My theory is this: It’s easier to undo $ without contract than contract without $. This presumes that the $ will go to a reputable escrow agent, ie, any title company. Am I wrong in this approach?
I agree.
I think that’s an excellent approach.
I agree Stephen, I’ve been licensed since 1986 and recall maybe one time writing/receiving an offer without earnest money. I just advise buyers that earnest money is not required by law but it sure makes the seller feel buyer is sincere about his/her offer.
Don’t you people have better things to do with your time, than to moan and whine about grammar and typos? Yes, I agree that it is pathetic that some of us, who claim to be professionals, cannot speak, write, and type properly, especially when spell checkers point out our mistakes. Hopefully those agents will either improve themselves, or be weeded out of the business. However, it is the height of rudeness to be petty in pointing those things out. It almost sickens me to read these threads when they are more about correcting each other, than trying to educate your… Read more »
Agreed
Agreed! I am in awe!
It has always pretty much been standard practice in my neck of the non-woods to not have a seller execute the contract until both the earnest money and option money checks are present and both are represented as legal tinder (not post dated or seller’s agent instructed to hold until a certain date.) Our business being what it is, people, probably more today than in the past, don’t remember to bring their check books on a trip from out of town. I can remember somewhere in the distant past, I have written letters guaranteeing an earnest money deposit within a… Read more »
Let’s cut back to the chase: “if the buyer does not deposit the earnest money with the escrow agent within a reasonable time after contract execution, the buyer would be in default, and the seller could exercise her rights under a default provision.” The real issue here is the frustration and angst (usually perpetrated by the agent) due to the fact of EM not being received and the subsequent quandary of what to do next. The default provisions stated in the contract are lame, at best, and raise more questions than solutions. What rights? Read paragraph 15 very closely and… Read more »
Louis, I very much agree. If there is no actual earnest money on deposit, the very best the seller might hope for is the declared amount of earnest money as described in paragraph 5 (of the 1-4 contract). Enforcing specific performance as described in 15 (a) for the Seller may be no less than very costly and time consuming at best. All at the hands of an attorney.
So what if the seller accepts the offer and executes the contract, but that same day the buyer changes their mind and says never mind they’re not interested in the home after all. Buyer never turns in EM nor Opt checks to no one. Can Seller still demand the option money be paid to them even though the buyers do not want to go through with the contract?
If the buyer changes their mind and never turns in the EM nor the Opt checks, do they still have to turn in the termination of contract? Contract never got receipted.
Hello. After 21 days, the buyer’s realtor called my realtor to ask for an extension to get financing…otherwise They were to terminate the contract. I agreed in extending 2 more days, only to find out today that the buyer’s realtor didn’t keep us informed, they were denied many days ago changed to a new lender and were declined yesterday…apparently the buyer DOES NOT HAVE THE INCOME to purchase a home like the one I am selling…but they want the earnst money back…again just in time for the 21 day period…. What are my options as seller? I mean, I fixed… Read more »
What is a reasonable amount of time for the seller to terminate IF THE BUYER DOES NOT TURN IN EARNEST MONEY? Part 2. What notifications does the seller / listing agent need to perform?
I was in a real estate contract as a seller. The buyers never delivered or deposited any option money or earnest money. According to the contract they would be in default and I am entitled to remedies such as specific performance or earnest money. However, there was a third party financing addendum that states if they can not obtain financing they are entitled to keep the earnest money. My question is which provisions of the contract supersede and take precedence regarding the earnest money.
Thank you
What if the buyer doesn’t turn in his earnest money like he was supposed to in said contract. no one notified the seller and now the buyer backed out of the home. seller is trying to collect earnest money and the title said the buyer never turned in the money. 1st time the seller is aware of this 7 days after the closing was supposed to happen (buyer backed out on closing day). who is responsible for making the seller aware? Could we hold any claim against the title company for the money since they did not give the proper… Read more »
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Hey! the buyer would be in default, and the seller could exercise her rights under a default provision.
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Is there any recourse for a situation similar to this, where the buyer asked for an extension and granted by seller. Buyer sent over a personal check for $2,000 as earnest money, but the check was hot and confirmed by the bank there were no funds available. Contract was terminated because buyer was trying to do an assignment contract with a wholesale company , and could not close on contract closing date? Earnest money check was written out to the title company and not the home seller, so I’m wondering if there’s a way to be able to collect the… Read more »
We entered into a contract as seller. We allowed the buyer to use his chosen title company. Very unprofessional, very little communication no matter how often I asked if everything was moving along to close on time. Closing day came, we showed up, buyer didn’t. Escrow agent informs us, she works for him, not us. He was in default by not closing that day w/no extension. We accepted another contract (for less $$), and sent the Release of Earnest Money to Escrow agent and buyer. We are met with an email from Escrow agent saying she had nothing to do… Read more »
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Thanks for this article. It’s just what I was searching for. I am always interested in this subject.
I was not given an address to leave option fee. 4 days later, at inspection I decided to pull out and terminate contract. was told if I paid the option fee they would return my earnest money, I dropped it off the same day, they excepted and gave me a receipt for the fee. they are still denying me the money. If they still excepted the option fee they are exception the 10 days option period right?
No because the option provision is very clear it must be delivered within the 3rd day by 5:00 for option fee . Because it was delivered on 4th day you did not have the option period
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I signed a real estate contract for new construction in Florida, yesterday, Saturday., February 16, 2020. The house has not been built yet. I am having buyers remorse. I have not deposited the earnest money yet. If I do not deposit the earnest money, can I cancel the contract without penalty?
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Can a buyer do a Property inspection with the earnest money been deposited at the title company?
How do I get out of a home sellers contract we signed 8 months ago with no money down and I feel like thay took advantage of me my mom just died and offered 205,000 on a house that is worth low 450,000 low high 489,000
I am a realtor and my client has 3 days to deposit in the escrow account the check, what happen to me as a realtor if he does not deposit the money?
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I have a situation where the Option was delivered timely, first day after contract execution, communicated, and acknowledged by Seller’s agent (and check cashed by the Seller), yet the Seller agent is delaying to sign for receipt of it until a random undisclosed amount of time has passed, but “before the closing,” because the agent “is too busy.” I realize that since the check was cashed, legally my clients still have the Option period, I am just inquiring whether there are any written Realtor documents that I can reference in support of the request to have the acknowledgement done timely.
Hi, My buyer didn’t deposit EM and we are now few days before closing and I’m not sure what to do ? I question buyers sincerity now as it’s been 2 weeks waiting for EM to be deposited . What are my legal channel or options ??
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I put down $1000.00 earnest money on a town house on Friday. I felt pressured and changed my mind and contacted my realtor on Sunday. 2 days later. She had called my sister ( not sure why) and revealed that the check has not been cashed yet. Am I entitled to my earnest money as a refund?
What happens when an effective date of May 1st is put on the contract, the buyer isn’t notified until May 2nd, and instructions on how and where to deposit the earnest money and option fee are not received until May 3rd? Physically there is not enough time for the money to be delivered!
If the buyer does not deposit earnest money, and the contract does not close because buyer never signed and closed, he is in default. Can seller sue for demages?
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insert tank numbers as proof that buyer has tanks availability at the
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