[WSBARP] Research guidance requested

[Anthony Gibbs]

A kind soul pointed out that I swapped buyer/seller… apologies. Buyer wrote documents, buyer cited inspection contingency, buyer wants earnest money back; seller understood earnest money to be non-refundable.

--
Anthony F. Gibbs, Esq.
Sounder Law PLLC

(206) 734-4374 [P]
(206) 212-7825 [F]
anthony at sounderlaw.com<mailto:anthony at sounderlaw.com>
sounderlaw.com

22014 7th Ave South, Suite 106
Des Moines, WA 98198

15600 Redmond Way, Suite 101
Redmond, WA 98052

**[IN-PERSON MEETINGS BY APPOINTMENT ONLY DUE TO COVID-19 AND AN ABUNDANCE OF CAUTION]**

If you received this email by accident or by some other mistake, please immediately delete it and forget anything you might have read in it, which are probably all just lies anyway. Thank you. I’d also appreciate you notifying me of the error.

From: Anthony Gibbs <anthony at sounderlaw.com>
Date: Tuesday, November 17, 2020 at 9:20 PM
To: wsbarp at lists.wsbarppt.com <wsbarp at lists.wsbarppt.com>
Subject: Research guidance requested
I’m looking for some help with legal research and would appreciate any guidance or thoughts on the following scenario:

Standard form 21 MLS PSA with financing addendum form 22A, optional clauses addendum 22D, and inspection addendum form 35. Just under 5% earnest money. Both the financing contingency and the inspection contingency are selected. BUT, at the bottom of form 22D, line 12 Other is checked and the following language is added:

  1.  Buyer hereby authorizes escrow to immediately release $50,000 of earnest money upon mutual acceptance directly to the Seller. This money shall now be considered a non-refundable deposit towards the purchase of the subject property.
  2.  Inspection is for buyers information only. PASS/FAIL

The buyer’s agent prepared the form and all parties signed. Seller later cited the inspection contingency as the reason to terminate the contract and demands the $50k of earnest money back. There is some indication that the buyer might also have had financing problems, but did not cite that as a reason for termination. Buyer understood the $50k to be non-refundable under any circumstances and that motivated them to accept the offer.

What I am looking in to is whether that language, which is not standard form language but was added at the discretion of the parties and written in to the contract by the buyer’s agent, is binding despite the contingencies. Items (1) and (2) seem to directly contradict the inspection contingency and the ambiguity ought to be construed against the buyer, since they prepared the forms; and the added language ought to control over the standard contract provisions.

Am I missing something? It seems like the buyer’s agent might have made a major blunder here. Any thoughts are welcome.

Yours, in gratitude,
Anthony

--
Anthony F. Gibbs, Esq.
Sounder Law PLLC

(206) 734-4374 [P]
(206) 212-7825 [F]
anthony at sounderlaw.com<mailto:anthony at sounderlaw.com>
sounderlaw.com

22014 7th Ave South, Suite 106
Des Moines, WA 98198

15600 Redmond Way, Suite 101
Redmond, WA 98052

**[IN-PERSON MEETINGS BY APPOINTMENT ONLY DUE TO COVID-19 AND AN ABUNDANCE OF CAUTION]**

If you received this email by accident or by some other mistake, please immediately delete it and forget anything you might have read in it, which are probably all just lies anyway. Thank you. I’d also appreciate you notifying me of the error.
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