If you’ve been doing real estate for some time, you’ve likely wondered how to get earnest money back in Florida for your clients. You may have even wondered if a seller can keep their earnest money. We’ve written this article to discuss the ways people have gotten their earnest money back in Florida using various methods, including lawsuits and other remedies.
Information About Earnest Money in Florida
Real estate broker Kim Bregman describes earnest money very well for buyers on her Optima Properties blog: “When you make an offer to purchase Florida real estate, you will include an earnest money deposit. This shows the seller that you’re serious about the offer to purchase the Florida property. The sales contract will dictate who holds the earnest money. Usually, the seller’s agent will deposit the earnest money in a trust or escrow account until closing. At closing, the earnest money is applied to the total purchase price including closing costs.
“In the event that the sale doesn’t close, the sales contract spells out the conditions under which you would forfeit the earnest money. Generally, if the seller meets all the terms of the contract, the seller will keep the earnest money. If the seller doesn’t meet the terms of the contract, you as the buyer receive a total refund of earnest money.”
She closes with an excellent piece of advice for buyers: “Read your sales contract thoroughly and get your questions answered before you complete the offer. If you’re not satisfied with the explanation, seek professional legal counsel. A real estate purchase offer is legally binding and you and the seller are bound by its terms and conditions.”
Can Your Buyer Get their EMD Back?
There are several opportunities for buyers to get their earnest money deposits back in Florida. All along the process from contract to close, buyers can “cancel the contract without surrendering earnest money, so long as the buyer submits timely, appropriate notice of the intent to cancel,” states Brandon Sweeney on the blog for Florida-based Sweeney Law.
He regularly handles complex litigation regarding escrow deposit disputes in Florida and goes on to say, “If the deadline has passed and the buyer discovers something else about the house that is objectionable and terminates the contract, the seller will likely have the option to keep the buyer’s earnest money.”
If There’s a Dispute About Earnest Money
After the deadlines have passed, the seller and the buyer need to agree before the money can be distributed. “Generally, the would-be buyer is entitled to the money he or she put down, but the seller can keep the deposit if the buyer fails to adhere to the time frames and terms of the contract,” Brandon Sweeney explains.
“If there is a dispute, the seller and buyer will usually say they are entitled to the money. The escrow agent holding the funds is unable to distribute them until the dispute is resolved. In order to resolve the dispute, parties must refer to the language in the contract. If the buyer defaults, the seller may choose to recover and retain the deposit as agreed-upon liquidated damages, and both parties shall be relieved from further obligations under the contract. Or the seller may proceed in equity to enforce their rights under the contract.”
Lawsuits About Earnest Money in Florida
Florida has been home to several earnest money disputes, some of which ended in lawsuits. A Legal Counsel P.A. post about escrow disputes in Orlando offers a word of advice to buyers, “Because an escrow dispute doesn’t prevent the seller from advertising or selling the property, it’s often in the interest of the buyer to get the issue resolved. The best way to avoid an escrow dispute is to prevent the dispute from happening. Have a clearly-worded real estate contract in place that outlines and sets forth each party’s responsibilities and rights, steps to follow if there’s a dispute, and what happens if there is no resolution to the dispute.”
Darryll Clark of Barry Miller Law Offices states that the Florida Association of Realtors cited the Florida Realtors/Florida Bar As-Is Residential Contract for Sale and Purchase (FR/BAR) as the most commonly used purchase contract in Florida. “The FR/BAR, Paragraph 2, Section (a) provides space for entering details regarding escrow. The initial deposit amount and delivery instructions including payment date and the selected Escrow Agent along with pertinent name and contact information are identified and available to both parties in the contract.
“If the FR/BAR is in use, sections 13, 15, 16, and 17 provide a general outline of default and dispute resolution procedures. Section 16 specifies that ‘Buyer and seller will have 10 days after the date conflicting demands for the Deposit are made to attempt to resolve such Dispute, failing which, Buyer and Seller shall submit such Dispute to mediation under Paragraph 16(b).’ In cases where mediation fails, the escrow dispute becomes a legal matter and ‘may be resolved by instituting action in the appropriate court having jurisdiction of the matter.’”
Of course, the FR/BAR contract isn’t required in order to form a Florida real estate purchase contract. In those cases, again, both parties would need to refer to the contract. If the escrow agent is a licensed broker, they are to “notify the Florida Real Estate Commission within 15 business days after receiving conflicting demands. At that point, the broker can request the following methods of resolving the dispute:
- An escrow disbursement order from the FREC directing the agent how to distribute the funds
- With the consent of all parties, submitting the dispute to arbitration
- With the consent of all parties, submitting the dispute to mediation
- Seeking adjudication of the dispute by the appropriate court
“Both the buyer and seller retain the right to file a civil action to recover the proceeds. Other form contracts may provide different ways for disputes to be resolved. Consult with an experienced real estate litigation attorney to understand your rights and explore your options,” the Moorehead Real Estate Law Group blog says.
Compliant buyers can almost always get their earnest money back. The only time this doesn’t happen is when the buyer doesn’t meet deadlines in a timely manner. Sometimes, however, the seller decides to dispute the buyer’s claim to the earnest money. There are several remedies available to those who find themselves embattled in an earnest money dispute, including arbitration, mediation, and court cases (civil suits). Always advise your client to seek legal counsel if they have any questions. By doing this you are protecting them as well as yourself.
Close Concierge is Here for You
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