November 21, 2016 — It's a question we often get on the Florida Realtors Legal Hotline: Is earnest money required to make a contract legal and binding. The answer: no.
Deposits are often provided as evidence of a buyer's commitment to the purchase, but they are not required by law. A binding contract to purchase real estate only requires consideration. Consideration is defined as something of value offered for something else of value.
According to the Florida Bar, "The formation of a contract is accomplished when there is an offer and acceptance between the contracting parties of the exchange of 'consideration' (that is, something of value). This offer and acceptance are sometimes referred to as a 'meeting of the minds.' If the parties have not reached a meeting of the minds, then there is no agreement." In the case of a real estate purchase contract, the consideration the buyer is offering is the purchase price in exchange for the deed to the property.
Most purchase contracts contain a section to indicate the amount of an escrow deposit and when it's due. Purchase contracts also usually contain a liquidated damages clause that entitles the seller to keep the deposit if the buyer defaults. Liquidated damages are common in real estate purchase contracts, even though the parties are agreeing what the remedy is for the other side in the event the buyer defaults.
If you as the listing broker receive a contract that is either cash or 100 percent financing with a deposit amount of "0," you must present it to the seller. This contract is valid despite the lack of an earnest money deposit. You may explain to the seller that because there's no deposit, there is nothing for the seller to keep as liquidated damages if the buyer defaults. Buyers and sellers can negotiate these terms just like all other terms of the agreement.
Some sellers look at a lack of deposit as unfair. Why, they ask, would they remove their house from the market if the buyer is not serious enough to put down a deposit? A seller certainly may insist on a deposit before agreeing to the contract; this is allowable if the buyer agrees. However, it is not legally required. In addition to a deposit, sellers will also sometimes ask for other requirements like proof of funds or a prequalification letter.
Transactions come in all shapes and sizes. Realtors do well to understand some components of contract law to assist them in working with buyers and sellers. All parties should review purchase contracts carefully, preferably with an attorney, to understand their rights under the agreement in the event the other party does not perform as promised.
Margy Grant is vice president and general counsel of Florida Realtors
© 2016 Florida Realtors®