What makes you lose your earnest money?
Many things could trigger a refund, but the main things to be aware of are contingencies, home inspection problems, and failure to get title insurance. If you randomly choose to change your mind on a home, the seller could hold onto it as compensation for their time. Make sure you really want the home.
The purpose of earnest money is to provide the seller with compensation in the event that the buyer backs out of the deal through no fault of the seller and in violation of the agreements in the purchase contract. If that happens, the seller gets to keep the earnest money.
If you have an inspection contingency, you can either renegotiate with the seller and ask them to complete the repairs before closing or decide it's not worth it and walk away with your earnest deposit. If you didn't have a home inspection contingency, walking away might mean forfeiting your earnest money deposit.
The amount of earnest money you'll need to pay is typically 1 percent of the home's purchase price, but it can depend on the type of transaction and the nature of the broader market. On a $355,000 home, for example, you'd put down $3,550 as an earnest money deposit.
Property buyers get their earnest money back if the deal goes south for reasons covered in contingencies. Otherwise, there's little or no chance of a refund. If you change your mind late in the buying process for reasons other than contingencies, the seller can keep the earnest deposit.
What if I decide not to buy, will I get my earnest money back? It depends on why you are backing out of the deal. There are certain contingencies covered in most real estate contracts protecting the buyer. If you back out of the contract for an approved contingency, you will get your earnest money back.
A seller that feels entitled to the deposit or a buyer that feels a refund is deserved will try to get escrow to release the deposit. Escrow cannot release the deposit without instructions signed by both the buyer and seller or a court order from one of the parties.
Use An Escrow Account
As a result, you should never give your earnest money directly to the seller or a real estate brokerage. Instead, go with a third party such as a title or escrow company, which will hold your earnest money for you. You'll usually pay by certified check, wire transfer or personal check.
The earnest money deposit is held in reserve, either by an escrow firm or attorney, depending on the law in your state. Technically, nobody "gets" the earnest money until the sale is completed or canceled: If the sale is successful: the earnest money is applied to your down payment on the home purchase.
While laws vary by state, in general, up until that contract is signed by both parties—even after counteroffers have been sent out—all new offers can be considered and accepted. Once both parties have signed it, however, the seller is pretty much locked into the deal.
Can a seller back out of a contract if they get a better offer?
Bottom line. “Generally, a seller can't cancel without cause,” Schorr says. “You could build in some contingency, but absent that, you had better be committed to the sale.” Reneging because you fear you underpriced the house, or you actually receive a better offer, doesn't count as “cause.”
Depending on the circ*mstances, this money may be recovered through the legal system. In terms of refusing to close on a building contract, if the buyer defaults, the seller can sue for the difference in money damages that were incurred as a result of failing to close the contract.
Quick Takeaways on Earnest Money in Real Estate
Earnest money is a payment from the potential buyer to the seller to show good faith in their intent to complete a real estate transaction. If the buyer's offer is accepted, earnest money goes toward the down payment and closing costs.
Typically, the money is kept in an escrow account held by an escrow company, a real estate title company or the seller's real estate agency. Don't give the earnest money directly to the seller because you might have trouble getting it back if things go awry. The earnest money is disbursed at closing.
While many inexperienced home buyers think that this is the down payment, it really isn't. The earnest money deposit is made along with your offer to show the buyer that you are a serious buyer and goes TOWARDS your down payment. The down payment, of course, is much larger and comes at the time of closing.
If a real estate contract is canceled, the disposition of the earnest money deposit can vary depending on the terms of the contract and the reason for the cancellation. Typically, the deposit is held in a neutral escrow account and released according to the terms of the contract or as agreed upon by both parties.
Backing out without a contingency
If you don't have a contingency to protect you if that happens, you'll most likely lose your earnest money deposit and, in some cases, be subject to other penalties, however. If you back out for any reason and are not covered by a contingency, you'll most likely lose your deposit.
A contingency is a potential occurrence of a negative event in the future, such as an economic recession, natural disaster, fraudulent activity, terrorist attack, or a pandemic.
The seller could include a clause in the contract that says the earnest money deposit becomes non-refundable after a specific date. Accepting this clause can give you a competitive edge, but should the deal not work out, you will lose your deposit.
A contingency is a clause that buyers include when making an offer on a home that allows them to back out of buying the house if the terms of the clause aren't met. Without a contingency in place, buyers risk losing their earnest money deposit if they decide not to purchase the home after making an offer.
What is the return policy of EMD?
EMD shall be forfeited if the tenderer withdraws or amends impairs or derogates from the tender in any respect within the period of validity of his tender. EMD of successful tenderer shall be refunded preferably within thirty days of submission and acceptance of the Security Deposit, as called for in the Contract.
You ignored the timeline outlined in the contract
Watch out for this phrase in your paperwork—it means the closing date for the sale is binding. If you can't make it to close the real estate transaction on time for any reason, you as the buyer have breached the contract and could forfeit your earnest money.
If your EMD was paid by someone else who is not part of the transaction, this will be considered a gift and you will also need to provide a gift letter (see Gift Funds for more info).
As mentioned, a contingency in real estate is a condition that must be met before an offer can proceed, and it's kind of like a safety net. Therefore, an appraisal contingency means that if your home doesn't appraise for the amount you've agreed to pay, you can walk away from the deal with your earnest money deposit.
In competitive markets and in cases where multiple similar offers are being considered, a higher earnest money deposit can sometimes help guide the seller to the most motivated and capable buyer. By accepting an offer, a seller is committing to pulling their property off the market for a period of time.
