Agent2Agent in Phoenix>Question Details

Mike, Both Buyer and Seller in Phoenix, AZ

5 days after an accepted offer on our home the buyer has yet to deposit any earnest money. Are we still bound to this contract?

Asked by Mike, Phoenix, AZ Mon Dec 12, 2011

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32
Andrew, what section of the contract says there is no contract if the earnest deposit isn't made and where does the contract define "as soon as possible?" I ask only because I don't see any place in the contract where it's spelled out and therefore clear.
4 votes Thank Flag Link Sat Dec 17, 2011
Have you consulted with your Buyer's Agent about it?

Without actually seeing the contract you signed, along with any addenda, there is no way ANY of us on this forum can or should be advising you. If you have a Buyer's Agent, talk to her/him first. After that, consult with an attorney, NOT another real estate agent.

I'm appalled at the dispensing of legal advice by so many agents on this forum. You guys should really talk to your brokers before you post that kind of stuff on a real estate forum.
4 votes Thank Flag Link Mon Dec 12, 2011
Jonathan - well said, and I ditto everything you did say (so politely and eloquently).......... but I am afraid it is probably falling on deaf ears.

Have a happy holiday seaon everyone!
3 votes Thank Flag Link Thu Dec 15, 2011
Michael - as much as I feel bad for hijacking Mike's post, since he was looking for an answer and not squabbles between real estate agents, a couple of quick things.

1) I've taught contract writing courses. Read the contract, let me know where you see any time period for the earnest deposit to be deposited. We're not talking about the standard, we're talking about whether someone is bound to the contract and thus the language in the contract matters.

2) Of course an agent working for a buyer wouldn't be outside the bounds to issue a Cure Notice. But you are not the agent working for the buyer. You are providing advice without knowing what the contract says, based on the assumption it's an AAR contract with the boilerplate untouched and unamended.

Defeating the point of this forum doesn't make the perspective incorrect. Trulia Voices long has been a fairly hazardous area for the public and for the agents here; As one of the originals here, I can't tell you how many times I've personally seen the wrong answer given, legal advice provided by non-attorneys, agency relationships stomped on, the Code of Ethics violated and the public led down paths that would be to their detriment.

There are no simple questions in real estate. Anyone with even a dozen transactions under their belt knows this. Every situation is different based on the circumstances and the terms of the contract. But still, if you really believe you're qualified to provide legal advice, despite every warning and disclaimer given by AAR on every piece of paperwork, I wish you the best of luck.
3 votes Thank Flag Link Thu Dec 15, 2011
Mike - the answer Sonny provided covers most situations but not all, which is the point Randy was trying to make. For instance, if you're selling via a short sale the AAR contract boilerplate about the earnest deposit is different.

Also, if there were any changes to the AAR contract boilerplate via addendum, strikethrough or language in the free-form portion, the answer would be different. If you are selling on your own without an agent and used a contract you picked up at Office Max, the answer would be different.

The "48 hour" concept has come up several times here but there's nothing in the contract that specifies that time frame. Be careful about confusing general practice with hard contract language.

Depending on the contract, you may or may not be able to cancel immediately - if you used the AAR contract, you have to go through the Cure process first. If not, then it depends on whatever the language of your particular contract says - we haven't seen it, so you know better than we do.

There was mention of suing for damages - if you're using the AAR contract, that option is fairly limited by the "breach" section of the contract.

Be careful with the advice you receive here ... if you act on it and it's incorrect, you'll have a heck of a time holding responsible the people who led you down the wrong path. The best advice of all came at the start - read the contract and talk to your agent about what can be done. If you don't like his or her answer, talk to a real estate attorney.

Good luck.
3 votes Thank Flag Link Wed Dec 14, 2011
Mike,
Not enough information: what does your Contract say?
Also, there may be extenuating circumstances; such as sickness, death in the family, on a trip, reversal, etc.
Please don't assume the worst; you DO want to sell the property? Give them the benefit.

Sonny;
You are out of line; the MLS's and NAR say; do not give Legal advice; they know what they are talking about: None means NONE!

Good luck and may God bless
3 votes Thank Flag Link Tue Dec 13, 2011
@ Randy & Dominique...

With all due respect, I think your answers are hogwash. Your answers don't help Mike one bit. You are pushing him back towards his own agent and broker for answers when Mike is looking for other opinions. Maybe he doesn't feel his agent is giving him good advice? There's no way to know.

However, the fundamental question Mike has posed can 100% be answered with certainty on the face of the facts presented. We can certainly speculate as to other contractual provisions, extenuating circumstances, etc., however none of those were presented in the question and can therefore be eliminated as variables as far as our answers are concerned.

I dare say that the response provided by Randy is one of the reasons real estate agents get such a bad rap. We don't actually help our customers. We are great at telling customers what they want to hear in order to turn them into clients, but once they are clients we are very quick to say "talk to an attorney". We are NOT dispensing legal advice at all. We are simply sharing our understanding of the process and drawing upon years of experience to do so based upon the limited facts presented in Mike's question.

While some of us try to help, it's obvious that others do not. I'd rather be one of the helpful agents.
3 votes Thank Flag Link Tue Dec 13, 2011
> Also, do you recommend the person who asked this question incur attorney costs for the work that a REALTOR is hired to do?

The key word there is hired. No one hired you, Michael, or anyone here. No one here is taking on any liability for their answers, they simply are spouting oft dubious advice. On top of that, I would suggest discussing with your broker whether we are paid to give legal advice - there are disclaimers on all AAR paperwork that says clients should consult an attorney for legal advice, as we are not lawyers and shouldn't pretend to be. Unless your training, unlike the rest of ours, included the bar exam.

> and this implies 48 hours in the industry.

When discussing legal matters and contracts, "implies" and $4 will buy you an egg not latte. If you're unsure, feel free to contact Michelle Lind, legal counsel at AAR, to find out what she feels about what the contract might apply. When you do, tell her I said hi.
2 votes Thank Flag Link Wed Dec 14, 2011
Geesh Michael - don't you think your opening sentence is a bit of an stretch??

A question that asks if someone is "bound to a contract" ..means "legally" bound.....the minute the word contract comes up - it's legal in nature.......and has LEGAL implications/ramifications.

Not all consumer questions are legal in question - how silly to suggest that .....explaining the process, or explaining what might be included in your area's contract - general questions - are one thing.......telling a consumer what he should or shouldn't do, based on limited information shared on a website, is another.

Consumers ask all kinds of questions that do not involve "legal" opinions.

Rather than beat this into the ground - call up your state Real Estate Commission - and ask their opinion of answering this sort of question with a detailed response. Maybe you have a managing Broker who has an opinion on this, too.

Actually, just as a point of information..........NJ, NY & PA had their yearly tri state convention (attendance over 5000) last week. One of the forums (packed forum) was entitled: "12 Ways to Lose Your License".............many of those "ways" involved what to say or, more importantly, NOT say online!

The biggest issue here is exactly what Randy.......and most recently , Jonathan, pointed out.........no one here has ALL the particulars of Mike's situation or contract.....so how in the world can anyone offer any specific advice?...............it doesn't really matter if it's legal of not........to give any INFORMED opinion, it's usually helpful and prudent to have all the specifics of the situation.

And on that note.......goodbye to this thread and...................good luck Mike!
2 votes Thank Flag Link Wed Dec 14, 2011
Wow, Sonny... I was content to let your last comment stand on its own merit (or lack thereof), but now you've added icing to your own cake. Based on Mike's question, can you tell me EXACTLY what contract he signed? Do you know beyond a shadow of a doubt what other counter offer(s) or addendum(s) he might have signed? Do you know if Mike has an agent, and if so, that you're potentially interfering with their agency relationship? Where do you get off assuming so much when in fact there are massive details undisclosed by Mike's posted question.

As for your insistence on personal attacks and accusations, that's just unprofessional and disrespectful behavior.

Mike, I would urge (beg) you to consult with your Buyer's Agent and re-read ALL of the paperwork you signed. If you're still in doubt about what to do, then consider consulting with a real estate attorney.

I wish you all the best!
2 votes Thank Flag Link Tue Dec 13, 2011
Thumbs up from me too Randy. Mike, he has the best answer...please review.
2 votes Thank Flag Link Tue Dec 13, 2011
Hi Mike:

All that needs to be added to what Brian said, is first be sure to go over your contract with your realtor, just to be sure it was handled in such a way that it, in fact, calls for the earnest deposit to be made within 5 days (which would be NORMAL, but, just to be sure).
2 votes Thank Flag Link Mon Dec 12, 2011
Well, at last.... we have had a major breakthrough....it's nice to be loved, especially during the holidays........let's all hold hands and sing

:)

Mike - have a great holiday.........sorry we got a bit sidetracked here.
Now........what was the question?? ha :)
1 vote Thank Flag Link Thu Dec 15, 2011
Sonny when you get off the high horse you rode in on.........if you take the time to scroll down and read what I have said........I NEVER gave advice to Mike.......I applauded Randy's excellent advice.........and continue to do so..along with Jonathan's outstanding advice.

Anyone from NJ, FL, CA or the Arctic, can see that their advice is reasonable, prudent advice....one doesn't have to be from AZ to recognize excellence.
1 vote Thank Flag Link Thu Dec 15, 2011
Why are there so many agents from other states (Debbie, Jim, Ron, Dominique, and Dan) answering questions posted here in Arizona? Unless you are also licensed here in Arizona, I can comfortably say that you are violating NAR's code of ethics by attempting to practice real estate in an area you are not familiar with, and may also be in violation of Arizona's Revised Statutes by offering real estate advice without being properly licensed in this state.

I only mention this because it's laughable to read an agent from NJ or CA lecturing about code of ethics when their participation in this forum is, by definition, a violation of their ethics if they do not practice real estate here.
1 vote Thank Flag Link Thu Dec 15, 2011
@ Randy Hooker. If what you say is true, no REALTOR could ever answer any question on this forum because you would say instead they need to seek legal advice. REALTORs are actually licensed and trained for exactly this type of problem! Also, do you recommend the person who asked this question incur attorney costs for the work that a REALTOR is hired to do? I wouldn't say that is looking out for that individual's best interests.

Also, the earnest money is required to be deposited in a timely fashion and this implies 48 hours in the industry. If someone were told to wait longer for the earnest money, I don't believe that would be in the individual's best interests either.

Just my two cents.
1 vote Thank Flag Link Wed Dec 14, 2011
@ Randy,

I do not need to know all of those details in order to provide a general response to a general question. The types of details you are asking for would be appropriate if you were representing this client and advising him as part of your fiduciary duties. However, none of that is needed here because: a) none of us represent Mike, b) none of us have represented ourselves as attorneys, and c) none of us owe fiduciary duties to Mike. This is a general forum where we exchange ideas and opinions. My answer is based on the details provided, not on what has not been provided.

With regard to "interfering with an agency relationship", Mike solicited for an answer to his question. Answering his question is not "interfering with an agency relationship" when the question was posed in a public forum by the seller. Hypothetically, if I had called the seller and said "hey, your agent sucks and you should use someone more experienced" then yes, that would be interfering with an agency relationship. But since I didn't do that, I don't see how this is even relevant to our discussion. For goodness sake, we don't even know if Mike has an agent!

@ Brian,

Agents arguing amongst each other is not a violation of NAR's code of ethics. If I don't agree with something an agent says, I'm free to express that disagreement. Soliciting that agent's clients or interfering with that agent's represented relationships is a violation of NAR's code of ethics. Saying that I disagree with Randy, Debbie, Dominique, etc. is in no way disparaging anyone. Why does disagreement=disparagement? Have we lost our ability to have a healthy debate? I haven't.

We live in an overly litigious environment and as agents we are taught from day 1 to be mortally afraid of liability of any sort. Hence the types of responses to Mike's simple question. I like to bring more value to the equation by sharing my opinion rather than offering a textbook answer that will limit my liability. If the latter is all we have to offer, then why are we all here? Certainly it has more to do with being helpful to consumers than generating business for ourselves, right?
1 vote Thank Flag Link Tue Dec 13, 2011
Randy,

Mike is stating he is the seller, not the buyer. Just FYI. I agree with you that there is too much info that is missing to make an assumption.

Stating facts is not giving legal advise. Advising a buyer or seller what to do is.

Guys, we are on here to assist buyers and sellers not argue among each other. If we disagree its best to take it off the forum rather than argue in public. That in itself is against our Realtor Code of Ethics.
Web Reference: http://brianrocca.com
1 vote Thank Flag Link Tue Dec 13, 2011
Mike

It really is best to contact your own agent and determine what your contract states in regard to the issue. If the agent doesn't know contact the broker or an attorney.

The accepted offer should be the controlling documentation you refer to.
Web Reference: http://www.McVinua.com
1 vote Thank Flag Link Tue Dec 13, 2011
Randy - thumbs up from me, and if I could give you a Best Answer, I would!

Truthfully, I am quite surprised to see Trulia staff responding here, giving advice to a consumer in AZ by explaining how it is done in San Francisco ......that's most unusual.
1 vote Thank Flag Link Mon Dec 12, 2011
Earnest money is supposed to be deposited within 48 hours. You need to issue a cure notice. If the earnest money is not deposited during the cure period than the contract can be canceled.
1 vote Thank Flag Link Mon Dec 12, 2011
I would check with your broker and file a cure notice immediately to start the 3 day process. After the 3 day cure if they do not perform, then you are not bound any longer.
Web Reference: http://brianrocca.com
1 vote Thank Flag Link Mon Dec 12, 2011
In Arizona the contract is clear, Earnest money has to be deposited as soon as possible, failure to deposit the money can mean there is no Contract..
0 votes Thank Flag Link Sat Dec 17, 2011
When in doubt I always fall back on the written contract but would first give the Buyers agent a courtesy call before doing anything drastic.
0 votes Thank Flag Link Thu Dec 15, 2011
@ Debbie, I love you too! :)
0 votes Thank Flag Link Thu Dec 15, 2011
Also, well stated Sonny Shrivastava. I agree completely.
0 votes Thank Flag Link Thu Dec 15, 2011
Yes, the key word is hired and no one is representing the guy that asked the question. So what are you complaining about? It was also simple question about earnest money. If the contract is canceled and then someone wants to take it to court, than it becomes a legal matter. No court would deem a Realtor working outside of his bounds for issuing a cure period because earnest money was not deposited! That is our job!

To say we could not speak on the matter also defeats the whole purpose of this forum. Also 48 hours is the standard. Any real estate instructor will tell you the same thing in a standard real estate renewal course.
0 votes Thank Flag Link Thu Dec 15, 2011
Interesting question, most sellers try to hold a deal together.
0 votes Thank Flag Link Tue Dec 13, 2011
Again, at face value this question can absolutely be answered solely on the facts that have been provided. This is completely within our area of expertise. Are you agents saying that you never interpreted or explained the contract to your clients? That's legal advice. Are you agents also saying that if your own client came to you with this question, and without any extenuating circumstances or contract language to the contrary, you would NOT answer your own client's question or leave them hanging with "talk to an attorney"? I would call that a lapse of your fiduciary duties. So let's not be hypocrites here, ok?

It's a simple answer to a simple question. Let's not make it more complicated than it needs to be.
0 votes Thank Flag Link Tue Dec 13, 2011
Mike,

While there is no explicit time requirement in the Arizona contract with respect to when earnest money must be deposited, it must be deposited in a timely manner. Five days is a long time - we give buyers on our listings 48 hours but not a minute more. At this point you must issue a cure period notice to the buyer stating that earnest money has NOT been deposited as required under the Contract. The buyer will then have 3 full days to cure. For instance, if you issued the cure notice on Monday, the buyer has until 11:59pm on Thursday to cure the potential breach of contract. If the buyer does not do so, on the next calendar day (Friday) you, as the seller, can cancel the contract citing a breach. You also have the option at this point of suing the buyer for damages.
0 votes Thank Flag Link Tue Dec 13, 2011
It depends on how your contract was written. If it states within 24 hours of approval, then you are not bound to the contract. But before you opt out of the contract have your agent contact the other agent and find out what is going on.
0 votes Thank Flag Link Tue Dec 13, 2011
Mike,
Start by reading your contract. The terms of your transaction are all there. If you are uncertain, contact your agent or have it reviewed by an attorney. There are contracts written where the earnest money must be deposited immediately. I've also seem them where it may be delayed until after the inspection is complete or some other pre-determined time.
You may not be bound if it was to be deposited immediately or you may be required to give notice, again your contract will indicate. Best of luck.
0 votes Thank Flag Link Mon Dec 12, 2011
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