What Are The 3 Ways Buyers Can Lose Their Earnest Money Deposit?
Earnest money deposits are one of the most critical parts of the home buying process. To show a seller that an offer is serious and made in good faith, a prospective homebuyer will include a check with their offer, for typically 1-2% of the purchase price.
A strong earnest money deposit essentially acts as security and incents the seller to accept an offer and take the home off the market versus waiting for offers from additional prospective buyers. The earnest money deposit is typically turned over to the title company after the contract is ratified and is placed in an escrow account until closing. If the deal goes as planned, the earnest money deposit is usually applied towards your down payment.
According to Realtor.com, there are 3 scenarios in which a buyer could end up losing their deposit to the seller. A buyer should be aware of these before submitting an offer on a house.
1. You Waived Your Contingencies
In highly competitive markets, it’s becoming more common for buyers to waive contract contingencies regarding financing or an inspection. You might be tempted to do the same if you’re really after a particular property. It will make you a more attractive buyer, but it also comes with serious risks. You guessed it, you might lose your earnest money deposit.
The financing contingency guarantees that you will get your money back if the financing is not approved. With the inspection contingency, you can declare the contract null and void (and get your deposit returned) if there are issues uncovered in the home inspection that make you change your mind about purchasing the home.
If you waive all your contingencies and there are financing or home defect issues, you will not be able to get your deposit back if you abandon the deal. Therefore, you may not want to waive the inspection contingency unless you’re planning on tearing the property down. Or, if you think you will be in a competitive offer situation, you could do an inspection before submitting an offer. That way you know ahead of time if there are any serious issues with the home that would prevent you from purchasing it, and can submit an offer with the home inspection contingency waived. As for the financing contingency, waiving it may be the only way to compete with all-cash buyers. However, you have to be absolutely sure that you’ll be able to get approval from the bank.
2. You Ignored the Timeline Outlined in the Contract
Your contract usually sets specific timeframes in which you need to secure financing and do any inspections. If you try to void the contract after any of these deadlines have passed, you could lose your deposit. Generally speaking, as long as you’ve made a good-faith effort to adhere to the timeline, sellers will grant a reasonable extension if the lender needs more time or there are other extenuating circumstances that delay things. Any extension must be made in writing and signed off by both the seller and the buyer.
3. You Get Cold Feet
If you have a change of heart about the home you’re buying, but there’s no problem with the property or the financing, you likely will not get your deposit back. The earnest money deposit serves as protection for the sellers when they take their home off the market. If late in the game you decide that you no longer want to make the purchase, they get to keep it as compensation for the time and money they have to spend on listing their home again and looking for another buyer.
However, if you do change your mind, you may not be limited to losing the deposit only. The sellers could sue you for specific performance and all the tertiary costs that go with that, including their legal fees. For instance, let's say the sellers moved out of the house and that they staged the home by bringing in additional furniture. When the house goes under contract, they move the furniture out so that they don’t incur further staging costs. If the buyer backs out due to cold feet, think of the additional costs that the seller now bears, which could be more than the cost of the deposit. You could be responsible for these costs as well, so be careful.
From personal experience, I have a fourth scenario in which buyers could lose their deposit. This is if they don’t represent their financial situation truthfully. Last year, buyers who ratified a contract on a listing I had committed fraud. They represented their ability to purchase the home based on income and assets that were not real. They put up a $25,000 deposit on a $690,000 purchase in McLean. We went after that $25,000 and got 100% of it for the seller. The seller ended up putting the property back on the market and actually came out slightly ahead because of the deposit, but nobody wants to go through the pain and aggravation of all that, right? Of course not. When you're a buyer and making an offer, make sure you represent yourself honestly.
Are you a prospective homebuyer and need additional help navigating the complexities of earnest money deposits? Contact the Eric Stewart Group, trusted real estate professionals who know the ins and outs of the industry. For more information on the home buying process, download our free Savvy Buyer Guide, which is packed with useful tips and will help you avoid common buyer mistakes!