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As a REALTOR, 2011 was horrible.  Contracts busting because buyers can’t secure financing, home appraisals coming in low, and scary home inspections broke many real estate transactions.

The Oklahoma Real Estate purchase contract that is supplied by the Oklahoma Real Estate Commission has three procedures of what constitutes breach of contract by a buyer.

Expiration of Buyer’s Right to Cancel Contract .
D 1) Failure of Buyer to complete one of the following shall constitute acceptance of the Property regardless of its condition:
a. Perform any Investigations, Inspections or Reviews;
b. Deliver a written list on a TRR form of items to be treated, repaired and replaced; or
c. Cancel the Contract within the time periods in Investigations, Inspections or Reviews Paragraph.
2) After expiration of the time periods in Investigations, Inspections and Reviews Paragraph, Buyer’s inability to
obtain a loan based on unavailability of hazard insurance coverage shall not relieve the Buyer of the obligation to
close transaction.
3) After expiration of the time periods in Investigations, Inspections and Reviews Paragraph, any square footage
calculation of the dwelling, including but not limited to appraisal or survey, indicating more or less than quoted,shall not relieve the Buyer of the obligation to close this transaction

Procedures for obtaining the earnest money from either party is as follows.

16 B. Release of Earnest Money. In the event a dispute arises prior to the release of Earnest Money held in escrow, the escrow holder shall retain said Earnest Money until one of the following occur:
1) A written release is executed by Buyer and Seller agreeing to its disbursement;
2) Agreement of disbursement is reached through Mediation;
3) Interpleader or legal action is filed, at which time the Earnest Money shall be deposited with the Court Clerk; or
4) The passage of thirty (30) days from the date of final termination of the Contract has occurred and options 1), 2)
or 3) above have not been exercised; Broker escrow holder, at Broker’s discretion, may disburse Earnest Money. Such disbursement may be made only after fifteen (15) days written notice to Buyer and Seller at their last known address stating the escrow holder’s proposed disbursement.

In 2011 many buyers and sellers ended up in small claims court.  And many buyers indeed got their earnest money back.  My theory is that it falls upon the saying of “buyer beware.”

In earnest, (no pun intended).  Brokers do not want to be part of a dispute between earnest money.  The only time a broker wants to release earnest money from it’s trust account is when buyers and sellers are happily closing a real estate purchase transaction.  In 2011, it became known quite quickly throughout the REALTOR community that a Oklahoma judge was awarding earnest money back to buyers, even when the provisions of breach were clear. Which made a lot of use wonder…..

So why earnest money? Despite all of these questions and concerns, earnest money does spell out a “good intention of the buyers.”  Whether, the contract follows through out a dent or not.