If a note is taken as earnest money it is in the sellers best interest to have a note payable

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 in good faith on a home loan or real property to the seller from the buyer during a home sale. Generally, the earnest money can be anywhere between 1-10% of the sale price. The earnest money contract 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. 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 will 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.

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

Do you have any questions about an earnest money contract and want to speak to an expert? Post a project today on ContractsCounsel and receive bids from real estate lawyers who specialize in contracts.

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In today’s housing market, making sure your offer on a home will stand out is important. There are a few ways to let a seller know you’re serious about buying a home, such as a preapproval from a lender, or the Rocket Mortgage® Verified Approval program. Another option is putting down an earnest money deposit. 

This article will provide an overview of what earnest money is, how to use it to your advantage when buying a house and how to protect yourself once you deposit it.

Earnest money is put down before closing on a house to show you're serious about purchasing. It's also known as a good faith deposit.

When a buyer and seller enter into a purchase agreement, the seller takes the home off the market while the transaction moves through the entire process to closing. If the deal falls through, the seller has to relist the home and start all over again, which could result in a big financial hit.

Earnest money protects the seller if the buyer backs out. It's typically around 1 – 3% of the sale price and is held in an escrow account until the deal is complete. The exact amount depends on what's customary in your market. If all goes smoothly, the earnest money is applied to the buyer's down payment or closing costs.

If the deal falls through due to a failed home inspection or any other contingencies listed in the contract, the buyer gets their earnest money back. The practice of depositing earnest money can decrease the likelihood of a buyer placing offers for multiple homes, then walking away after the seller takes the home off the market.

Alex, Taylor and Sam are all selling their homes. Charlie is a home buyer who has looked at all three houses and wants one of them, but can't quite decide which one. If all three sellers require earnest money deposits, there are three scenarios that can play out with Charlie’s home purchase.

Situation A: The Forfeited Deposit

Charlie doesn't want to decide on a single house just yet and makes a good faith deposit on all three houses. Alex, Taylor and Sam each take their homes off the market and inform their other potential buyers that Charlie wants the house.

Later, Charlie decides to buy Alex’s house. Taylor and Sam now have to put their homes back on the market and start looking for buyers all over again. Luckily, Charlie’s earnest deposits are Taylor’s and Sam’s to keep. This offers them some compensation for the time and money they lost due to Charlie backing out of the sales.

Situation B: The Early Closing Payment

Charlie doesn't have money to spare on making deposits to all three sellers, and after some consideration, decides on Alex’s house and makes a single deposit. Everything goes to plan, Charlie moves in and the deposit goes toward paying off the house.

Situation C: The Failed Contingency

Charlie makes a single deposit to Alex, but after the home inspection, discovers the house is infested with cockroaches. Luckily, Charlie has a home inspection contingency in the purchase agreement and decides not to buy and gets the deposit back from Alex.

Earnest money isn't always a requirement, but it could be a necessity if you're shopping in a competitive real estate market. Sellers tend to favor these good faith deposits because they want to ensure that the sale won't fall through. Earnest money can act as added insurance for both parties in the transaction.

Earnest money could also lower the amount you need at closing because it's applied directly to your down payment or closing costs. Essentially, you're just putting up some of the money earlier in the process.

How Verified Approval Could Help

Rocket Mortgage’s Verified Approval can give you even more of a leg up on the competition by assuring the seller that you can qualify for the loan you need. A seller looking at multiple offers is more likely to lean toward a buyer with approved funding – and having earnest money down on top of it can make your offer stand out even more.

The amount of earnest money you should offer depends on the particular real estate market your desired property is in. A languishing real estate listing in a slow market may not need as much earnest money as in a hot market with multiple buyers who are vying for the same property. If you plan to purchase in a neighborhood where cash offers and bidding wars are common, a higher good faith deposit is a good idea.

If you're working with a real estate agent, they should be able to provide direction on how much earnest money you should offer. If you're competing with others for the same property, it's in your best interest not to undercut the earnest money deposit amount because you could lose the home to a stronger offer. If it's a slow or moderate market, your agent can advise you if a good faith deposit in the standard range will suffice.

Earnest money has contingencies that protect both the seller and buyer in certain situations.

When you make an offer on a home and the seller accepts, the sale is only finalized when contingencies, or certain criteria, are met. They're typically listed in the purchase agreement and cover the inspection, appraisal and mortgage approval, among other items.

Home Inspection Contingency

The home inspection is a common reason potential buyers back away from a deal. If your prospective home is inspected by a professional and some elements of the home come back in need of repair, a home inspection contingency can allow you to back out of the transaction. If you don't want to back out of the deal, you could also work with the seller to have the repairs made or have them lower the purchase price so you can do the repairs yourself.

Appraisal Contingency

The appraisal contingency, which protects the buyer if the property is overvalued, is equally important. The lender hires a third-party appraiser to determine the fair market value of the home and to compare it to similar properties for sale. With this contingency, if the home is appraised at less than the sale price, you can choose not to move forward with the deal and you'll get your earnest money back. Alternatively, you can use the appraisal to negotiate a new price.

Financing Contingency

If you weren't preapproved for a mortgage when you put your earnest money deposit down – or even if you were – and then you don't get approved, a mortgage contingency can protect you. You have the right to walk away and get your earnest money back as long as this contingency was listed in the agreement.

Contingency For Selling An Existing Home

Some contracts also include a contingency for selling your existing home. If you can't sell the home you currently own before you close on another home, this contingency lets you back out of the deal with your earnest money in hand.

When To Waive A Contingency

In hot real estate markets, some buyers feel pressure to waive contingencies; for instance, they may consider this if they're absolutely certain they'll qualify for a mortgage. However, it's never a good idea to waive the appraisal or inspection contingencies. Those contingencies are there to protect you.

There are a few steps you can take to protect your earnest money:

Step 1. Use An Escrow Account

The real estate market isn't immune to fraud. As a result, you should never give your earnest money directly to the seller or a real estate brokerage. Instead, go with a third party such as a title or escrow company, which will hold your earnest money for you.

You'll usually pay by certified check, wire transfer or personal check. Your check should be made out to that third party, and you can keep a copy of the check and request a receipt. The funds are then held in the escrow account until closing.

Step 2. Know Your Contingencies

Contingencies are in place to protect both the seller and buyer, so you should understand every scenario where you and the seller can back out and what impact that would have on your earnest money. Be sure you're comfortable with the contingencies and are confident any actions you take won't result in losing your good faith deposit.

Step 3. Stay On Track With Your Responsibilities

To protect the seller, the purchase agreement will typically include a timeline for when every aspect of the process has to be met, such as the date by which you need an inspection done or when the mortgage should be approved.

If you miss those deadlines, there could be grounds for the seller to back out of the deal with your earnest money in hand. Most sellers won't rescind the deal the minute you miss a deadline, but if you take too long, it could be a deal breaker.

Step 4. Put It All In Writing

A home is one of the largest purchases many of us will make. It's important to protect your investments along the way, which is why you should put everything in writing. This includes any changes to the timeline and buyer responsibilities. Make sure the purchase agreement lays out who gets the earnest money if the contract is canceled.

For instance, if the inspection fails and the buyer will get to keep the earnest money, state that in the contract. If the buyer has a change of heart and the seller will keep the earnest money, lay that out as well. Everything should be explained in detail in the contract.

Earnest money can protect a home buyer if something is wrong with a property, and also the seller if you simply want out of the deal. Going the extra mile with a Verified Approval or an earnest money deposit can also prove to a seller that you're serious about your offer, making your offer stand out from other buyers.

Ready to begin the home buying process? Apply online today for mortgage approval from Rocket Mortgage.