Who Gets To Keep The 10% Deposit?

Hooray, my buyer walked, I'm keeping his %&#@ing 10% deposit!

Hooray, my buyer walked, I’m keeping his %&#@ing 10% deposit!

In our last episode, the clever real estate agent, sensing the commission on $26,500,000 was nicer than $12,000,000, deftly steered his clients to the more expensive house, even though they had signed contracts and put down 10% of the purchase price on the cheaper place!

So they walked away from $1,200,000??

Well, actually, yes, in this case, it happens to be true, those buyers really did walk away from $1,200,000. The part about the broker “deftly steering them”, well, I made that up.  What actually happened (I think) is that the deal sat around too long, the seller hemming and hawing, delaying and waiting, while trivial closing details were worked out. Eventually, the contract got signed and exchanged, but by then, so-o-o-o much time had gone by that the buyers became susceptible to a new idea.

Remember this catchy phrase: “Time is the enemy of the deal”.

In the previous example, the money was big, and so were the players. Despite what my brother, Chris Fountain says, there is honor among Wall Streeters. When those guys give their word, they don’t back out. That buyer backed out, but he had the honor (and the bucks) to walk away from the deposit, he did the right thing.

What about a more normal circumstance? You’ve made a deal to sell your shack for $1,000,000, contracts are signed, and you now hold the buyer’s 10% ($100,000) deposit. The next day, the buyer announces he’s not going through with it, he wants his deposit back. Can you keep it? Yes!

But maybe no. The  law  Previous court decisions have determined your requirement  to attempt to mitigate your damages. If another buyer shows up two days later and offers you the same $1,000,000, you’ve suffered no damages, and buyer number one gets a full refund. On the other hand, if six months goes by, and you finally, finally make a deal, but it’s only for $900,000, well then, congratulations, you get to keep the previous buyer’s deposit in its entirety!

Let’s review…

Buyer walks, demands return of his 10% deposit. Before you can keep it, you must show that you made every effort to MITIGATE YOUR DAMAGES. The dollar amount of the damages you suffered from the breaking of that contract is what you can deduct from the deposit amount. If another buyer shows up (soon) and offers the same deal, you must give back the deposit.