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Q. I tried to buy a property and the loan was not approved so escrow has cancelled. This is an REO property and the seller was going to pay the HOA transfer fee of $800. Now the escrow company wants me to sign a cancellation document that will release the $800 from my $5000 earnest money deposit. They also want me to give them back the HOA documents. Is this legal for them to take the HOA money from me? Should I sign the document, or say that I want my full $5000 back? They said they MAY reimburse me the HOA fees once another escrow closes on the property.
This is something you should speak with your agent about....but here are a few items. Escrow can only charge you for amounts that were agreed to in the agreement. In the purchase agreement or counter offers or addenda, did it state the Buyer would be responsible for payment of HOA documents? If it didn't, you shouldn't have to pay the amount. Yes, GIVE the documents back that you received. Tell the escrow company they will be using the same documents for the NEW buyer, so there is no reason for you to have to pay the fee. Keep in mind...the HOA TRANSFER FEE and HOA DOC FEE are two different fees.
Escrow's duty is to fulfill the terms of the contract for both sides. If your original purchase agreement stated that the seller was responsible for the HOA documents, then that is who they should be collecting from. The fact that they are attempting to deduct them from your deposit implies that those are indicated as a buyer expense on the contract. It's rare that I see the seller pay for these costs on an REO.
Whatever you signed in the original contract may prevail, but you need to sit down with your agent or his broker and ask them to fight this on your behalf. If the fee is for the documents they sent you, then give them back to escrow and request your full deposit back. I don't know what your benefit would be in having the HOA docs on a property you are not buying, so in any case, show your good faith by returning those and getting a receipt signed by someone there to show that you did.
If you tried to do this transaction without an agent representing you, then you may have to consult an attorney and have him review your contract to see if he feels you are entitled to receive the $800.
Read the offer contract you signed as well as the escrow instruction and contract with the escrow company. There is typically something in there that allows escrow to recover expenses they paid in the case of an escrow falling out after expenses have been paid.
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