This is a tricky question because with a short sale, the lender is usually in control and the regular rules wonâ€™t always apply. Since Realtors are not in a position to give legal advice, you should always check with an attorney, but here are some facts about the real estate contract.
Let me explain how this usually works. If you used the CAR residential purchase agreement, see LIQUIDATED DAMAGES â€“ Section 16 which states: â€œIf Buyer fails to complete this purchase because of Buyerâ€™s default, Seller shall retain, as liquidated damages, the deposit actually paid. If the Property is a dwelling with no more than four units, one of which Buyer intends to occupy, then the amount retained shall be no more than 3% of the Purchase Price. Any excess shall be returned to the buyer.â€ (On the San Francisco Purchase Agreement, Liquidated Damages is under Section 29 - same wording as above.)
In this situation, per the contractual agreement, the 3% deposit amount is automatically kept by the seller.
However, note that this clause may not limit your financial obligation if the Seller claims further damages. If the Seller decides to pursue a claim through mediation or arbitration, the Buyer could end up being liable for an even larger amount than the 3% liquidated damages.
It is important to know when you are in or out of contract, because the liquidated damages apply only when you are in contact. For example, if your ratified contract states you have 10 days to get inspections or 21 days to obtain financing, and those days come and go without your removing your contingency, you are technically out of contract. Whenever you have a counter-offer on the table, you are out of contract until you agree to the terms of the counter-offer, or you counter the counter-offer and the other party agrees to the new terms of the counter-counter-offer. Confusing â€“ but your Realtor can clarify how the contract works.
In your case, it appears the lender countered your original offer with at least two changes in contract terms: a higher purchase price, and a $10,000 non-refundable deposit. If you agree to these terms, you could be entering into a binding contract that would supersede the terms of your original purchase agreement. One option would be for you to counter this offer by agreeing to the higher price but stating you only agree to a non-refundable deposit equal to 3% of the new purchase price.
Congratulations on having such a great credit score, but this has nothing to do with the deposit. The deposit just validates the sincerity of your offer.
Donâ€™t know who you are using for escrow, but Old Republic Title has an excellent program for Short Sales; I would refer you to call Lynde Black at 707-566-4215 to discuss your transaction.
Again, be sure to check with an attorney to understand your rights and obligations, especially if your situation is not covered by the boilerplate language in your contract.