http://www.zillow.com/advice-thread/Can-the-seller%27s-agent-require-receipt-of-earnest-money-if-buyer-cancels/392000/
QUESTION:
Can the seller's agent require receipt of earnest money if buyer cancels?
DISCLAIMER: Let's be clear, I'm not an attorney, nor is this legal advise, but I will give you my opinion as a Realtor.
MY ANSWER:
I'd say that the seller in a short sale is not alowed to get any money at closing. The seller, however, may make an arguement, that anything that happens before the closing is fair game, kinda like rent. Ask yourself this question; Does a seller get to keep the rent of a property he/she is short selling? I'd say your question runs along this same line.Also,the listing agreement dictates what happens to the deposit, and very important, is negotiable. I do believe that the listing agent can get the total amount of the deposit as liquidated damages, if he/she negotiates it in there.If you feel, however, that you may have a claim on the deposit, even if you are short selling your property, then you may not want to sign your right to the deposit away. Personally, I split the deposit 50/50 with the seller, regardless if it's a short sale a not. If I were the Realtor, I'd call the attorney that is provided to me as part of my dues to the Florida Association of Realtor for clarification. If I were you I'd call my own real estate attorney to get some advice. You may, very well, be entitled to the deposit or at least some part of it, even if you are short selling your property. If you don't have an attorney, then you can get a referral from a friend, or check your state legal bar website to find a qualified attorney.
FURTHER MORE:
In no way should a Realtor be allowed to get a fee for providing a short sale service, unless that Realtor owns a title company or some other legally recognized business,and is getting paid seperately on the HUD by the bank. Like another Realtor said earlier, if the Listing Agent filled in the contract with 100%, and the seller signed the agreement, then 100% of the deposit goes to the Realtor, in the event of a buyer default. It doesn't seem to me that there is any upfront fee in this case. If the Listing Agent is trying to negotiate a higher percentage of the deposit, then that's his/her right to do so. I'd say, however, if the Listing Agent wants the full 100%, and he wont negotiate with you and take 50%, then perhpas you're working with the wrong Realtor. Also, I'd be mindfull of that Realtors cancellation fee as well. I've seen Realtors take advantage of sellers and charge them a 3% fee for cancelling before the end of the listing agreement. I dont know about any other Realtors, but I charge a $495.00 cancellation fee + expenses.Hope that helps!
Be sure to click on the link to read all the answers. Great topic!
http://www.zillow.com/advice-thread/Can-the-seller%27s-agent-require-receipt-of-earnest-money-if-buyer-cancels/392000/
Friday, March 25, 2011
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