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Michael Jacobs
Pasadena, CA
Los Angeles Pasadena 818.516.4393

For legal issues, I consult with an attorney.  There are consequences to actions(or lack thereof) typically shown in a purchase agreement which vary by state/jurisdiction.   

Apr 07, 2017 12:46 AM
Inna Ivchenko
Barcode Properties - Encino, CA
Realtor® • GRI • HAFA • PSC Calabasas CA

Most of the time we try to cancel asap if they did not wire EMD in 3 days and move on to a next one. Why would you want to be stuck in a legal action instead of moving a next buyer who is ready/willing/and able? 

Apr 06, 2017 09:53 PM
Debe Maxwell, CRS | The Maxwell House Group | RE/MAX Executive | (704) 491-3310 - Charlotte, NC
The right Charlotte REALTOR!

Here in NC, without consideration, you have no Contract.

I would definitely consult your attorney about this.

Apr 07, 2017 04:40 AM
Dave Martin (703) 585-4687
Fairfax Realty - Fairfax, VA
Making Realty Dreams a Reality #WeWillGetYouHome

Nope.  You need to serve a notice to perform.

Mar 31, 2018 06:25 PM
Paul S. Henderson, REALTOR®, CRS
Fathom Realty Washington LLC - Tacoma, WA
South Puget Sound Washington Agent/Broker!

The contract is void in my eyes...

Apr 06, 2017 10:08 PM
Jill Murty, Realtor - Orange County, CA
Movoto - Laguna Niguel, CA

The contract is between buyer and seller, so no action against buyer's agent.  When EMD doesn't show up within the specified period of time, issue a Notice to Perform.  Unless the buyer removed all contingencies with the offer, they can cancel during the contingency period without losing their deposit, had it arrived.

Apr 07, 2017 01:20 PM
Ron and Alexandra Seigel
Napa Consultants - Carpinteria, CA
Luxury Real Estate Branding, Marketing & Strategy

I agree with Michael Jacobs 

Apr 07, 2017 11:21 AM
Thomas J. Nelson, REALTOR ® e-Pro CRS RCS-D Vets
Big Block Realty 858.232.8722 - La Jolla, CA
& Host of Postcards From Success Podcast


You need to serve a notice to perform.

It happens with cash buyers, write better counters to lock them in!

Apr 07, 2017 07:06 AM
Pete Xavier
Investments to Luxury - Pacific Palisades, CA
Outstanding Agent Referrals-Nationwide

I suspect something-At least an agent, even when new, would consult their broker and at least understand this is a legal issue and if you are an agent... need to step back as agents cannot practice law. Seller/selling agent is the same as buyers' agent. If you are somehow indeed an agent, find a new mentor and perhaps another broker.

Many great answers by the other responders.

Apr 07, 2017 06:22 AM
Alan May
Jameson Sotheby's International Realty - Evanston, IL
A moving experience!

My guess is that you're a for-sale-by-owner, and the buyer's agency is supposed to hold the earnest money.... and they never deposited it??

I'm not an attorney, so this should not be considered legal advice... but if the contract called for deposit of earnest monies, and the buyer's agent ignored those deadlines... yes, I would think you could take legal action.

btw... yes, a contract has to have "consideration" to be legal (consideration is the exchange of something valuable... like money)... but the "promise" of earnest money has been proven to be "consideration" for the purpose of contracts.  Even without the actual e.m. in place.. the contract could be valid and enforceable.

Consult with a real estate attorney.

Apr 07, 2017 05:03 AM
Nina Hollander, Broker
Coldwell Banker Realty - Charlotte, NC
Your Greater Charlotte Realtor

This needs the advice of an attorney. But without depositing emd as stated in the contract into an appropriate trust fund, that agent is in for a world of hurt. It might void the contract but I don't know for sure.

Apr 07, 2017 04:49 AM
Ryan Huggins - Thousand Oaks, CA - Thousand Oaks, CA
Residential Real Estate and Investment Properties

Check with an attorney.  In CA, I'd send a notice to perform for the EMD.  Then it's the seller's call if they want to cancel.  Since out here it would be 3 days in to the escrow, it could be difficult to show grounds for legal action.


Personally, sounds like the buyer is a real pip.  Might be better off letting them go and finding someone else who won't cause you mountains of stress.

Apr 08, 2017 07:39 PM
Anna Banana Kruchten CRS, CRB, Phoenix Broker
HomeSmart Real Estate BR030809000 - Phoenix, AZ

In earnest money is not deposited within the specified contract time than the seller may issue a 3 day cancellation 'cure' and cancel the deal unless the buyers performs within the 3 days.  Time for a call to that agents broker - or have your broker call the broker if agent is holding up the deal and not the buyer. Not good.

Apr 07, 2017 10:51 AM
Teri Pacitto
Compass - Westlake Village, CA
Real Estate, Your Style...Your Home...My Specialty

Your question is very confusing and you definitely should discuss with a lawyer.  Did the buyer agent steal the money?  Your direction seems to be toward the buyer agent and not the buyer. How would this ever be a buyer getting a cash deal with zero contingencies?  Again, very confusing.   Your first step might also be to call the buyer agent's broker.  

Apr 07, 2017 07:37 AM
Sandy Padula and Norm Padula, JD, GRI
HomeSmart Realty West & Lend Smart Mortgage, Llc. - Carlsbad, CA
Presence, Persistence & Perseverance

As others have stated, without consideration (the escrow deposit), there was no valid contract.

Apr 07, 2017 06:48 AM
Bob Crane
Woodland Management Service / Woodland Real Estate, EXP - Stevens Point, WI
Forestland Experts! 715-204-9671

If I were a judge I could answer that, but since I am not I will share what I would do. 

ask yourself, is is really worth it to sue your client?

Just shake it off and move on to the next deal.

Apr 07, 2017 06:34 AM
Carol Williams
Although I'm retired, I love sharing my knowledge and learning from other real estate industry professionals. - Wenatchee, WA
Retired Agent / Broker / Property Manager

Regardless of the legal options, IMHO, if a buyer wants to void a contract you might as well let them... or it's going to turn into the transaction from you know where.  I say move on!  

That said, though, agents do have legal responsibilities and there can be consequences for not fulfilling them.

Apr 07, 2017 05:19 AM
Harry Norman, REALTORS® - Atlanta, GA
Associate Broker

For legal advise is best to ask an attorney. 

Apr 07, 2017 05:19 AM
Lyn Sims
RE/MAX Suburban - Schaumburg, IL
Schaumburg Real Estate

BA can't come up with an excuse for this one. Hello board! That's not going to solve your problem though is it?

Apr 07, 2017 05:11 AM
Tony and Suzanne Marriott, Associate Brokers
Serving the Greater Phoenix and Scottsdale Metropolitan Area - Scottsdale, AZ
Haven Express @ Keller Williams Arizona Realty

Michael Jacobs nailed this one!

Apr 07, 2017 05:07 AM
Toronto, ON

Consult a lawyer in the relevant jurisdiction for legal advice.

Apr 07, 2017 04:58 AM
Peter Mohylsky. Broker -BRIX REALTY
Miramar Beach, Florida - Santa Rosa Beach, FL

There is no contract at this time and any legal action would be point less. 

Apr 07, 2017 04:04 AM
Jeff Dowler, CRS
eXp Realty of California, Inc. - Carlsbad, CA
The Southern California Relocation Dude

I don't understand. I am not an attorney but if the buyer does not perform then there are consequences in the contract. Does the buyer want to back out? Talk with your broker to protect your seller.

Apr 06, 2017 09:07 PM
Cheryl Dukes . . . . . Intown Atlanta
Solid Source Realty, Inc. - Atlanta, GA

EM is not required unless it is stated in the contract. Oops. So, if the buyer did not submit the earnest money as stated in the contract, then you no longer have a contract. You void the contract and make the home available for the next prospect. You don't pursue the buyer's agent for any damages.

May 06, 2017 08:58 PM
Troy Erickson AZ Realtor (602) 295-6807
Good Company Real Estate - Chandler, AZ
Your Chandler, Ahwatukee, and East Valley Realtor

For those of us in Arizona, Anna Banana Kruchten, CRS answered your question.

Apr 11, 2017 11:16 PM
Joan Cox
House to Home, Inc. - Denver Real Estate - 720-231-6373 - Denver, CO
Denver Real Estate - Selling One Home at a Time

I would recommend a call to a real estate attorney.

Apr 10, 2017 06:45 AM
Fred Griffin Florida Real Estate
Fred Griffin Real Estate - Tallahassee, FL
Licensed Florida Real Estate Broker

   Go after the license of the Buyer's Broker. 

Apr 08, 2017 12:39 PM
Lynnea Miller
Bend Premier Real Estate - Bend, OR
Premier Real Estate Service in Central Oregon

This happened to us.  Our seller, per the terms of the contract, sued on the basis of the note and won. 

Apr 08, 2017 11:48 AM
Gita Bantwal
RE/MAX Centre Realtors - Warwick, PA
REALTOR,ABR,CRS,SRES,GRI - Bucks County & Philadel

Legal question

Apr 08, 2017 08:28 AM
Harry F. D'Elia III
RentVest - Phoenix, AZ
Investor , Mentor, GRI, Radio, CIPS, REOs, ABR

send cure notice

Apr 08, 2017 07:07 AM
Praful Thakkar
LAER Realty Partners - Andover, MA
Andover, MA: Andover Luxury Homes For Sale

Well, the contract is invalid when that happens.

Check with the buyer's agent if the EMD is sent - and find out where it could be.

Apr 07, 2017 10:59 PM
Debbie Reynolds, C21 Platinum Properties
Platinum Properties- (931)771-9070 - Clarksville, TN
The Dedicated Clarksville TN Realtor-(931)320-6730

If the buyer's agent had the money and didn't deposit it timely he may be subject to discipline from the state real estate commission. 

Apr 07, 2017 08:32 PM
Joe Pryor
The Virtual Real Estate Team - Oklahoma City, OK
REALTOR® - Oklahoma Investment Properties

Difficult and if the seller gets in a lawsuit it can affect the ability to sell.

Apr 07, 2017 06:37 PM
Melissa Jackson
Century 21 Alliance Properties - Azle, TX
Helping You Make The Right Move

I believe a real estate attorney would be best to question.  Follow your contract.  What's it state? 

Apr 07, 2017 02:05 PM
Jennifer Mackay
Counts Real Estate Group, Inc. - Panama City, FL
Your Bay County Florida Realtor 850.774.6582

IMO there is no contract - not sure about your area

Apr 07, 2017 11:52 AM
Barbara Todaro
RE/MAX Executive Realty - Retired - Franklin, MA
Previously Affiliated with The Todaro Team

In my neck of the woods, the listing agent's office makes the deposit of the earnest money.... or the seller's attorney.... 

Apr 07, 2017 10:50 AM
Christine Kankowski North SD and Temecula
House Match Inc - Poway, CA
Excellent Sales and Property Management

This is not as clearcut as it would seem-  Was the check just held byt he buyers agent and not deposited?  How long has it been?

DId you follow up to make sure the money was depostied in a timely manner? Did you send a notice to perform when it was not done in 3 days?  If it has been, say, 2 weeks, and nothing was done, and the seller not notified, I think some responsibility may lie with the listing agent as well. 


Hopefully its only been 4 days and they arent depositing.- I would move ahead and find a new buyer, 

Apr 07, 2017 10:25 AM
Olga Simoncelli
Veritas Prime, LLC dba Veritas Prime Real Estate - New Fairfield, CT
CONSULTANT, Real Estate Services & Risk Management

Sounds like a legal issue. Buyer agent should have submitted EMD to seller's agent for broker to deposit in escrow a/c or pass on to attorney or title co to deposit. Sounds like buyer agent acted inappropriately and now you know why.

Apr 07, 2017 09:06 AM
William Feela
Realtor, Whispering Pines Realty 651-674-5999 No.

Depends on how long you want to be tied up. Me I just cancel

Apr 07, 2017 08:37 AM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate

Follow the terms of the contract. In the CA contract ... we give a notice to perform. They have two days to respond. If no response - seller can cancel and bring in back up offer or go back on the market and find another buyer. 

Alternatively, seek legal council.

Apr 07, 2017 07:57 AM
Richie Alan Naggar
people first...then business Ran Right Realty - Riverside, CA
agent & author

If the EMD was a condition of the then have no deal

Apr 07, 2017 07:18 AM
Wayne Martin
Wayne M Martin - Chicago, IL
Real Estate Broker - Retired

A lot of issues here an attorney can address!

Apr 07, 2017 06:08 AM
Gabe Sanders
Real Estate of Florida specializing in Martin County Residential Homes, Condos and Land Sales - Stuart, FL
Stuart Florida Real Estate

This is best handled by the legal procedures written for your state.

Apr 07, 2017 06:01 AM
Michael Setunsky
Woodbridge, VA
Your Commercial Real Estate Link to Northern VA

My State will take action against the buyer's broker. All EMD's have to be deposited within five business days of contract acceptance.

Apr 07, 2017 05:38 AM
Roy Kelley
Realty Group Referrals - Gaithersburg, MD

You do not want the expense of legal actions. 

Apr 07, 2017 05:22 AM
Richard Weeks
Dallas, TX
REALTOR®, Broker

I would suggest the seller consult with a real estate attorney.

Apr 07, 2017 04:59 AM