[WSBARP] Earnest Money Deposit Issue

Thu May 10 11:12:13 PDT 2018

Had this case a couple of years ago.   The contract does survive the death of the seller or buyer.   I had to look nationwide but that is the clear answer.  I obtained a court order awarding my client seller the earnest money because the deceased buyers estate  did not perform the PSA.

John Riley

John M. Riley III
Attorney | Witherspoon • Kelley
JMR at witherspoonkelley.com<mailto:JMR at witherspoonkelley.com> | Attorney Profile <http://www.witherspoonkelley.com/john-riley-1> | vCard<http://www.witherspoonkelley.com/s/jmr.vcf>

[WK]

422 W. Riverside Ave, Ste 1100
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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Kary Krismer
Sent: Wednesday, May 09, 2018 8:37 AM
To: wsbarp at lists.wsbarppt.com
Subject: Re: [WSBARP] Earnest Money Deposit Issue

I would agree with Eric, but also point out that you should probably review the offer carefully to make sure it was properly filled in and enforceable before some buyer's attorney gets involved doing the same thing.  Annie has been focusing a lot on Form 17 lately in her agent education, and there are very few transactions that have properly filled in Form 17s if you use the strictest standards and some contracts don't even have valid legal descriptions.

I would also question whether the contract survives the death of the seller.  I don't remember the answer to that question.

Kary L. Krismer

206 723-2148
On 5/8/2018 4:18 PM, Eric Nelsen wrote:
I don't think an offer/ask to rescind is a breach of the PSA, so Seller isn't entitled to the EM. Seller just needs to reject the offer to rescind and inform Buyer that the Seller Estate intends to close as agreed. Unless Buyer actually says something affirmative like "I'm not going to close on this," I don't think you have anticipatory breach.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of David Faber
Sent: Tuesday, May 08, 2018 4:01 PM
To: wsbarp
Subject: [WSBARP] Earnest Money Deposit Issue

List:

I'm representing the PR of an estate for a decedent who was under contract for the sale of real property here in Jefferson County at the time of death. When Buyer (B) was informed that seller had died, B signed and transmitted a MLS form 51 Rescission Agreement attempting to beg out of the PSA and for the refund of the earnest money deposit. I was, quite frankly, surprised to see B try to rescind considering the closing date on the PSA is not until later June and there was no notification to B that the estate would be unable to close the transaction as the successor-in-interest to the decedent. PR now want to boot B out of the transaction but keep the earnest money deposit as liquidated damages under the theory that B signing the rescission agreement is sufficient to indicate that B intends to fail without cause to close the transaction. Either way, PR is quite annoyed by B for rushing to exit the PSA when their father died.

I am unable to find case law on point here and wondering if anyone has any thoughts or would be willing to discuss this issue with me?

Best,
David J. Faber
Faber Feinson PLLC
210 Polk Street, Suite 1
Port Townsend, WA 98368
(360) 379-4110

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