How a Home Buyer Can Kiss Her Earnest Money Deposit Goodbye

We had a banner day in Sacramento short sales on Monday. While last week was one of those rare oddities in which it seemed that every time I turned around I was stepping into a big ol’ pile of stinky dog poop, this week is definitely back on track. I am back to a relatively smooth running real estate business with little bumps in the road along the way but no major potholes. I received 4 short sale approval letters yesterday and 2 extensions.

One approval was for a pool home in Carmichael. Another was for a Bank of America Cooperative short sale in Sacramento; there was an approval for a short sale in Galt, and an all new approval for a popular Carmichael short sale. I received a much needed short sale extension for a short sale that could not close in Rosemont and another in Sacramento, both of which were caused by excessive (buyer) lender delays.

Receiving short sale approval letters is a good thing. Finding out a buyer is canceling a short sale is not a good thing. It’s doubly NOT a good thing when the buyer cancels after short sale approval. I hate it when that happens. Especially if my sellers have moved out and now have to move back.

As a Sacramento real estate agent, I take precautions on behalf of sellers. It’s my job. For example, I routinely ask the buyer to sign a contingency release by the termination date for contingencies. Many listing agents don’t demand a contingency release from buyers because they don’t want to rock the boat or they don’t think of it. What a contingency release does, providing all of the contingencies are released, is put the buyer’s earnest money deposit at risk. It basically says if the buyer later elects to cancel, the earnest money deposit belongs to the seller.

Of course, if the buyer wants to contest the release, the money is not automatically released. Escrow requires mutual consent. In that case, the seller can take the buyer to small claims court and fight for the deposit there. Either way, once contingencies are released, the seller is generally entitled to the earnest money deposit.

Now, a $1,000 deposit makes a very small dent in the expenses a seller might incur when a buyer selectively cancels. If I was a seller who had to go to small claims court to demand a deposit that I believed to be rightfully mine, I might also ask for other damages that either meet the limit for liquidated damages in the purchase contract (3% of the purchase price) or small claims court monetary limits. The California small claims court dollar-limit maximum was raised this year to $10,000.

Guess I’ll polish the back of my high heels and trudge on stepping over dog poop. I’ve got another short sale in Lincoln to sell for a second time.