3 Ways to Protect Your Escrow Deposit

You’ve made an offer on a property, the seller has accepted, and maybe you’re about to sign a contract. Now it’s time to put some money down to show that you’re serious about moving forward.

The amount of money a buyer puts down (and when it’s put down) varies by state and local market. For many, it’s a few thousand dollars, up to three percent of the purchase price. In some parts of the country, it can be up to 10 percent.

The deposit is a good-faith gesture to the seller, indicating you’re serious about buying their home. Once deposited, this money can’t be moved or touched without written consent from both buyer and seller. Upon the close of escrow, the earnest money deposit is applied to the balance of the down payment.

Like price and terms, the deposit amount is negotiable. But if you put in much less than what’s customary in your market, it won’t fare well with the seller – particularly in a competitive market.

That doesn’t mean you can’t get your deposit back – or lose it, if you aren’t careful. From the time you put up the deposit until you close escrow, a lot can happen.

Here are the top 3 ways to protect your deposit.

1. Get to know the property

Every house, no matter if it’s a 100-year-old Victorian or a modern marvel, should have some type of inspection before it’s sold. Your contract should include a “contingency” for such an inspection, to protect you from unwittingly buying a money pit.

In an older home, the inspector will look at the foundation, the roof, and everything in between. You can have specialized inspectors go to the property as well, such as a heating ventilation and air conditioning (HVAC) specialist, a pool inspector, a termite inspector, or a structural engineer if the property merits it.

Even in a new condo, you’ll want to inspect the interior systems.

Should the inspection uncover some problems, it’s time to decide if you can live with them or not. Inspection contingencies are often so general that the buyer can get out of the contract and have their full deposit returned. Some call it the “cold feet” contingency, because sometimes buyers walk after the inspection, even if there weren’t major issues.

2. Get it in writing

You need to get written notice that your loan has been approved, and make sure the property doesn’t appraise for less than the purchase price.

Given tougher lending standards since the housing and credit crisis, the appraisal/loan contingency is more important than ever. A contingency clause allows the buyer to receive full written approval from the lender, before moving forward to the closing. So, if your loan is denied for whatever reason, you can exit the contract and get your deposit back.

If your loan broker isn’t willing or able to give you written notice that your loan has been fully approved, do not remove this contingency. If you do, you risk forfeiting your deposit. Some lenders will pull out or deny the loan at the last minute – like the day before they’re set to fund.

To protect your deposit, grill the loan broker, and don’t feel pressured by the seller to move ahead. It’s absolutely appropriate to ask the seller for an extension if necessary. Everyone in the transaction should want to work together to make the deal go through. But if you sign off that you’re approved and then you’re denied a loan, you risk losing your deposit.

An appraisal contingency should be added to the loan contingency as well. The property needs to appraise at no less than the purchase price. Some buyers have a larger down payment, and they may get loan approval even if the property appraisal comes in low. This isn’t good news. And as the buyer, you should be able to walk away or renegotiate the purchase price if the appraised value is less than the contract price.

3. Review the property disclosures

Sellers are required, in most real estate markets, to complete a series of disclosures regarding their knowledge of and experience with the property. By law, they’re required to disclose property defects, neighborhood nuisances, or anything that would negatively affect the property.

Additionally, you should have the opportunity to review any local or state reports, like a building permit history or a flood/earthquake map.

You should receive the seller’s disclosures and any required reports soon after your offer is accepted. In some markets, you may receive these disclosures before you make an offer. If you discover something negative about the property, this is your chance to say “no thanks” to the seller.

However, you’ll be required to sign off on these disclosures and reports at some point. Once you’ve done that, your deposit is at risk. So take your time. Review everything carefully. Don’t be afraid to ask questions about what you’ve learned.

If you feel something is vague, or if a particular disclosure brings up an issue for you, investigate it. Go back to the listing agent or the seller and ask for additional documentation, because your deposit is at stake.

For example, in one case, a seller disclosed there was some leaking in one window in the rear of the house. On the surface, it appeared to be a small leak. Upon further discussion and investigation, however, the prospective buyer discovered that the leak was part of a much bigger roof and gutter/dry rot problem

Thousands of dollars are at stake

Depending upon a home’s price, a buyer’s earnest money deposit can be a significant sum. A three-percent deposit on a $450,000 property, for example, would be $13,500. That’s not the kind of money most people would want to lose. So take your time as you move from offer to contract to closing.

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Note: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinion or position of Zillow.

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