Just when I thought it was perfectly clear and thought everyone else did, too…the earnest money delivery timeline reared its ugly head.
I represented the buyer on purchasing a property that went under contract on a Wednesday night. Since it was a cash transaction that was closing in ten days, I asked the buyer to get a Cashier’s Check for the Earnest Money, but her schedule did not allow her to go to her Credit Union until late on Thursday afternoon. No problem, as I knew I could deliver the EM and OF on Friday and still be within the time frame required.
Enter the problem: I received an email from the Listing Agent on Thursday night telling me that another offer had been received, and since I had not delivered the EM, my buyer’s contract was in jeopardy. The LA said she had just taken a MCE class and was told that the EM has to be delivered “almost immediately”, and she cited a case the instructor used to justify voiding the contract and taking the back-up offer. I thought maybe the “rules” had changed and I was the last to know. Our exchange was pleasant enough, but I just didn’t think that what she was saying was correct.
With very little research, I could see that nothing had changed and the delivery was timely per TREC rule 535.159(i) for the Earnest Money. I do wish, as many of my cohorts do, that the timeline for Earnest Money was given in the Contract just as the Option Fee timeline is given. Not only would there be no question about it between agents, but the buyers and sellers would know exactly what to expect for performance. By the way, I consulted the instructor of her class, and was told in writing “Time is not of the essence in paragraph 5. A slight delay is not a problem”. Ah….now, all we need to define is “slight”.
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