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Real Estate Myths and Misunderstandings


If the Buyer backs out, I can keep their deposit, right?


 

That is what Sellers assume, but today’s California Association of Realtors Residential Purchase Agreement (RPA) is a little more complex. If the Buyer and Seller have initialed the Liquidated Damages clause, the Buyer has removed the Inspection Contingency, and the Buyer cancels for no reason, then yes, the Seller may keep up to the amount of the Earnest Money Deposit (EMD). However, it is extremely rare that a Buyer would actually forfeit their deposit with all the loopholes available today.



1. Any new disclosure from the Seller’s side can trigger a new disclosure period.


2. From the CAR website FAQ: Q 8. Does a liquidated damages clause automatically entitle the seller to the buyer's deposit if a transaction does not close?


A No. As already stated, a liquidated damages clause only determines the amount of money a seller can recover from a buyer, and then only if the seller can prove that the buyer breached the contract. A buyer may fail to close a transaction for a variety of acceptable reasons (e.g., where the buyer's obligation to purchase was contingent on the buyer obtaining financing, and the buyer could not reasonably obtain financing). To recover liquidated damages, the seller generally must prove in court or arbitration that the buyer's failure to close the transaction was wrongful.


 

Bottom line, in a real estate transaction today, there are no guarantees that the buyer will close the escrow until you receive the call that the recording is confirmed. As Bette Davis said in All About Eve, “Fasten your seat belts, it’s going to be a bumpy night.

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