Earnest Money Contract: How They Work
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What is an Earnest Money Contract?
An earnest money contract is a legally binding document between parties made during the exchange of the earnest money. Earnest money is a monetary deposit made by the buyer in a home loan or real property transaction, and it’s typically held in escrow by a third party. Generally, the earnest money can be anywhere between 1-10% of the sale price. The earnest money contract generally sets the conditions for refunding the deposited amount.
Here is an article on earnest payments.
How Earnest Money Contracts Work
Earnest money protects the seller if the buyer backs out of a sale. An earnest money contract protects both parties by setting terms and conditions of the earnest money refund. It also provides remedies for both parties in case of a breach of contract or dispute.
Generally earnest money contracts contain crucial information pertaining to the sale and the exchange of the earnest money–such as contingencies, timeline of exchange, refund process, escrow agent, etc.
Here are some examples of how earnest money works.
Key Terms in an Earnest Money Contract
Earnest money contracts set the terms and conditions of refunding the deposited earnest money and provides remedies in case of breach of the contract. Here are some of the key terms you are likely to encounter in an earnest money contract:
- Buyer and seller details: An earnest money contract will contain the information about the buyer and the seller to establish the parties that are entering the agreement.
- Escrow agent information: The earnest money is generally held by an escrow agent agreed to by the parties involved in an escrow account . The escrow agent can be the seller’s attorney, the real estate agent or an agent of the title company or a third party, although it is important that the escrow agent be able to act impartially. In case of a breach, the escrow agent may return the amount to the seller and in case of a dispute the escrow agent might hold the earnest money till the dispute has been resolved.
- Amount of deposit: There is no rule about how much earnest money has to be. Generally, this ranges from 1-10% of the sale price. The earnest deposit contract will note the amount of the deposit being held.
- Property details: The earnest money contract will also contain information about the property being sold. It may also note the purchase price, representations and warranties, financing, mortgage note , title insurance , closing costs , lead-based paint disclosure and other relevant details of the sale, although these details may instead be included in a separate purchase agreement instead.
Contingencies:
Contingencies are an important part of earnest money contracts. These contingencies provide buyer protection by ensuring refund of the earnest money in case of certain special events. Here are some common contingencies used in earnest money contracts:
- Mortgage contingency clause: A mortgage contingency clause can be used when the buyer is purchasing real estate through a mortgage. This clause would ensure that if the buyer is unable to secure mortgage and complete the sale, the earnest money deposit will still be returned to the buyer.
- Inspection clause: An inspection clause allows the buyer to have certain amount of time to conduct home inspection for any issues. If the home fails this inspection and the buyer backs out of the sale, the earnest money can still be returned to the buyer if the inspection clause has been added to the earnest money contract.
- Appraisal contingency: An appraisal contingency allows earnest money refund in case that the appraisal, or appraised value, of the real estate is lower than the sale price.
- A contingency for selling an existing home: A contingency for selling an existing home makes the sale contract contingent on the sale of a current home. If the current home doesn’t sell and the sale doesn’t go through, this type of contingency still allows for earned money refund.
If you would like to learn more about contingencies in an earnest money contract, here is an article.
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Can I Get My Earnest Money Back?
Earnest money contracts have contingencies that protect both the seller and the buyer. In case a sale goes through, earnest money is generally refundable. Contingencies set out more terms under which even if the sale doesn’t go through, the earnest money is refundable.
However, if the buyer backs out or the sale is incomplete due to reasons not set under contingencies in the contract, the seller can forfeit the earnest money.
Here are some ways you can protect your earnest money.
What Happens to Earnest Money at Closing?
If the appraisal is completed and both the buyer and the seller is happy with the price and the inspection is completed without trouble, the buyer and seller move to closing. At closing, the buyer pays the seller and receives the rights to the property. At this time, the escrow agent will pay the buyer the earnest money which was being held in escrow. Sometimes, depending on how the earnest money was paid, it will be applied towards closing costs or down payment.
In cases where the buyer secures a loan with no down payment, the earnest money will just be applied to closing costs. The surplus will be paid back to the buyer. In cases where the earnest money deposit is not paid in cash and instead using other assets such as a watch, car, boat, real estate, etc., it might be returned to the buyer or liquidated and then applied to closing costs and down payment.
Here is an article on escrow money at closing.
Get Help With an Earnest Money Contract
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Sara S.
With over eleven years of intellectual property experience, I’m happy to work on your contract problem. I am very diligent and enjoy meeting tight deadlines. Drafting memoranda, business transactional documents, termination notices, demand letters, licenses and letter agreements are all in my wheelhouse! Working in a variety of fields, from construction to pharmaceutical, I enjoy resolving any disputes that come across my desk. I will prioritize your project, big or small. Please be ready and prepared with all relevant documentation so we can get started as soon as you click HIRE! Hourly rate projects will be billed hourly in accordance with the timesheet. Flat rate projects will be billed in segments. Choosing an hourly or flat rate is up to you. Absolutely no refunds.
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Experienced real estate, business, and tax practitioner, representing start up and established businesses with formation, contracts, and operational issues.
"Great detailed explanation highly recommend if you're a first time seller who wants a in depth conversation"
Samuel R.
My career interests are to practice Transactional Corporate Law, including Business Start Up, as well as Real Estate Law, Estate Planning Law, and Intellectual Property Law. I am currently licensed in Arizona, Pennsylvania and Utah, after having moved to Phoenix from Philadelphia in September 2019. I currently serve as General Counsel for a bioengineering company. I handle everything from their Business Transactional Agreements, Private Placement Memorandums, and Corporate Structures to Intellectual Property Assignments, to Employment Law and Beach of Contract settlements. Responsibilities include writing and executing agreements, drafting court pleadings, court appearances, mergers and acquisitions, transactional documents, managing expert specialized legal counsel, legal research and anticipating unique legal issues that could impact the Company. Conducted an acquisition of an entire line of intellectual property from a competitor. In regards to other clients, I am primarily focused on transactional law for clients in a variety of industries including, but not limited to, real estate investment, property management, and e-commerce. Work is primarily centered around entity formation and corporate structure, corporate governance agreements, PPMs, opportunity zone tax incentives, and all kinds of business to business agreements. I have also recently gained experience with Estate Planning law, drafting numerous Estate Planning documents for people such as Wills, Powers of Attorney, Healthcare Directives, and Trusts. I was selected to the Super Lawyers Southwest Rising Stars list for 2024 - 2026. Each year no more than 2.5% of the attorneys in Arizona and New Mexico are selected to the Rising Stars. I am looking to further gain legal experience in these fields of law as well as expand my legal experience assisting business start ups, and also trademark registration and licensing.
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Matthew S.
Attorney with a wide-range of experience
"Matthew is exceptionally timely. He had a response back to me three days before the due date. He is easy to work with and an excellent communicator. If I ever need assistance in the future, I will reach out to Matthew."
Alton H.
Alton H.
I am a U.S.-licensed attorney with more than a decade of experience in complex litigation and intellectual property matters. I have practiced at leading Am Law firms including Pillsbury Winthrop Shaw Pittman, Arent Fox, and Sughrue Mion, and I currently operate my own law practice. I have extensive experience handling high-stakes patent litigation, drafting pleadings and briefs, managing large-scale discovery, preparing and defending depositions, and appearing before federal courts and administrative bodies such as the PTAB and ITC. I hold a J.D., cum laude, from The George Washington University Law School and advanced technical degrees in chemistry and chemical engineering, which allow me to efficiently handle technically complex matters. I am admitted in multiple jurisdictions, including New York, Virginia, New Jersey, and the District of Columbia, and I regularly provide high-quality remote legal support to clients nationwide.
"Alton was responsive and efficient. He was easy to work with and we would work with him again. He does like to keep communication to the website but that worked fine for us."
November 1, 2023
Katherine V.
I am a skilled legal researcher and writer with a background in contract drafting and negotiation as well as litigation. I've served as an arbitrator for the past three years and have presided over nearly 400 binding arbitrations for an online dispute resolution platform. Additionally, I am a content writer and editor for the insurance division of LexisNexis. In my role as a contractor for LexisNexis, I research, draft, and edit high-quality legal reference tools on a variety of insurance topics for use by lawyers and insurance industry professionals.
November 3, 2023
Shawuki H.
hawuki attended SUNY Binghamton where he graduated with a Bachelor of Science in Marketing and Leadership & Consulting. Shawuki then went on to pursue his Juris Doctorate from Western Michigan University Thomas M. Cooley Law (WMU Cooley). During his time at WMU Cooley, Shawuki served as Justice of Phi Alpha Delta Law Fraternity, International, Vice President of Entertainment of Sports and Entertainment Law Society, and an Associate Editor of the Western Michigan University Thomas M. Cooley Journal of Practical and Clinical Law. At the conclusion of law school, Shawuki graduated with cum laude honors earning a spot on the Honor Roll and Dean's List. Professionally, Shawuki is an attorney/contract advisor and a serial entrepreneur. As the Managing Attorney of The Hilton Law Firm, PLLC, Shawuki has aided over a dozen startups and existing businesses with contractual, regulatory, administrative, and other legal matters. As a Canadian Football League (CFL) Contract Advisor, Shawuki has negotiated multiple player contracts, ensuring just compensation for his clients. Entrepreneurially, Shawuki is an owner of multiple businesses and has a wealth of business experience. Shawuki is a member of the Florida and District of Columbia Bar, Phi Alpha Delta Law Fraternity, International, Phi Delta Phi Legal Honor Society, and was recently named to the National Black Lawyers Top 40 under 40 list Florida.
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