Earnest Money Tie Ups

Real estate transactions are nearly always offered with an earnest money deposit. Generally this is about 1% but some buyer may "sweeten" the pot with high amounts, particularly when paying in cash or using a large down payment loan. The seller likes the larger earnest money because it shows serious intent by the buyer. The earnest money is typically held by a neutral third party often the title/escrow firm handling the transaction.

The buyer usually has some contingencies associated with their offer. A common contingencies are  inspection and loan. The inspection contingency states that the buyer will buy the house provided they are subjectively satisfied with the results of a professional inspection.This is typically a short period of 7-10 days in which the buyer can effectively exit the transaction and is entitled to a refund of the earnest money. The more common outcome of an inspection period is some form of negotiated agreement for the seller to make repairs.

The second contingency is based on the successful loan commitment from a lender. This one is not subjective but requires a legitimate contingent event to occur in order for the buyer to be eligible for an earnest money refund. If due to no fault of the buyer the lender is unable to fund the loan the buyer would exercise the right to terminate the agreement and is entitled to a refund of earnest money. No fault of buyer is objective and could be an arguable status. Generally a buyer must act in good faith to get the loan, this means submitting all documents to lender in a timely manner, following lender guidelines regarding credit. So if a buyer voluntarily quits his job, or goes out and buys a new car before closing, the buyer is not entitled to his earnest money back if the loan fails. But if an underwriter decides that their is something in the file the missed when approving the loan initially, this is not the fault of the buyer so long as they acted in good faith. The buyer is entitled to a refund of the earnest money.

A failure to close late in the process often is irritating to all parties involved. These are the situations that can lead to disputes over earnest money. The title company will not release the earnest money to either party until all parties agree. Buyers need to be aware that once they release the inspection contingency their earnest money is at risk. Even if they are entitled to receive it back a seller can stonewall for a fair amount of time tying up that money. This can be frustrating for buyers and agents alike. Buyers should be cautious about putting up excessive amounts of earnest money beyond the typical 1% as there is no guarantee that money will be promptly returned or in some cases returned at all. Buyers or sellers seeking to capture the earnest money in a dispute are always well advised to seek legal counsel before digging in for any kind of fight. Real Estate agents and Title Officers are usually NOT lawyers and must be careful not to practice law or give legal advice outside the scope of their very limited expertise.

Closing Systems Exist to Protect Us

Sometimes I encounter people that are frustrated with the cost and "inconvenience" of closing a real estate transaction. I get it, it is truly a pain in the hind quarters. But there are some people running about who are seeking to cheat others through fraud. We have in place a series of procedures, some of which are mandated by either the Feds or State governments, others just regionally customary.  

Sometimes sellers and even buyers will try to 'outwit' the system and enter into an agreement to purchase or sell a property outside of these traditional closing methods. For what? To save a few thousand dollars on title insurance, and escrow fees? To save a little time? 

I would strongly caution that any seller willing to participate in such a sidestep is very likely trying to cheat the other party. Without following the proper procedures in handling the close of a real estate transaction it is rather easy for a bad guy to sell his property to more than one buyer. He that records first is going to gain title and those that do not record first will be forced to sue the seller for fraud. Good luck with that.

These systems of closing involve disinterested third parties trained in the handling of escrow and title services. They are expensive, but they are effective. Even a for sale by owner transaction should by all means utilize the proper closing methods. A for sale by owner would be the likely type of transaction that a would be fraudster would utilize to perpetrate the misdeed.

Closing consists of among other details the following:

• Third party escrow holds all monies and documents until all procedures and contractual obligations are met. No one gets paid till the deal is properly done. 
• Title policies insure that title is marketable and free of encumbrances.
• Escrow prepares statements in accordance with the law and with no favor towards either party.
• Escrow will record properly the sale upon the full execution of the contract to purchase.

These are important details and when handled by professionals the opportunity for fraud is severely curtailed.

I am truly amazed that people fearful of a $5,000 stock market transaction, will enter into a shady real estate deal, risking hundreds of thousands of dollars. Don't go there my friends. utilize the services of local pros like Realtors®, escrow officers, title insurance companies and/or your attorney. Real estate is a wonderful investment, a necessary commodity, and an opportunity for fraudsters to do harm. By all means buy real estate, just go in with your eyes open.