Q: Buyers are attempting to rescind their offer after completing the home inspection. Can we retain Earnest Money Deposit?
We went under contract in a competitive bidding situation 6 days ago. An earnest money deposit of $10k was agreed and the only meaningful contingency was obtaining a satisfactory home inspection. Contract language proposed by and agreed with buyers for the contingency clause considers only those costs in excess of $5,000 per item. The kitchen concrete counters are unique and need to be replaced or refinished. All prospective buyers saw an estimated cost of $7k for full replacement. Buyers toured the home twice, seeing the 8.5” x 11” placard on the countertops prior to going under contract. The home inspection was completed. We have not seen a written list of items to remedy, but understand the buyers want out of the deal as a result of the countertops. We have not declined to repair or negotiate a new price. Seems like “buyer’s remorse”. Reverting to the other, now reduced, competing bid incurs damages. Can we force this cash buyer to perform? How do we retain the $10k EMD and move on?
A: A real estate attorney needs to see the purchase agreement to confirm, but in general, if a contingency date is not met or if a provision is not followed in accordance with the purchase agreement, you may be able to keep the prospective buyer's EMD. This can be highly contentious and it is imperative to provide a copy of the agreement to an experienced real estate attorney.
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