If taken to small claims court, as a buyer is there any way to get my ernest money back?

UPDATED: Jun 9, 2009

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If taken to small claims court, as a buyer is there any way to get my ernest money back?

I had written up an offer and I had given an ernest check. The contract and check were received by the selling agent on a Friday. I then had decided that buying this property was not in my best intrest for obvious reasons due to property condition. I had my realtor explain my position and let the seller know on Monday morning that I did not want the property. The sellign agent had verbally told my realtor that they accepted the offer on Monday but I had not received any signed document of accpetance. They are requesting the ernest money. By law is it theirs for the taking?

Asked on June 9, 2009 under Real Estate Law, Kansas


Sean C Santoro / Santoro Traffic Law Office

Answered 13 years ago | Contributor

Sean Santoro

Attorney at Law

Licensed in KS and MO

    Assuming the money was placed in an escrow account, both parties must agree in writing to release the funds. If the seller refuses to release the money to you,  contact me at sean@roadlawyer.net or call 913 441 5025 if I can be of assistance.

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 13 years ago | Contributor

Well here is the issue. Contract law for purchase of property (land) must be in writing per the Statute of Frauds. Generally, offer and acceptance must be in the same form here -- in writing.  If you reneged before you received an acceptance, it depends -- some states say the acceptance must have been sent before you reneged -- i.e. effective upon sending/mailing. 

Ernest money issue -- it depends if this is considered an option -- to hold the property or part of the down payment not to be deposited if sale doesn't go through.  If the former, you lose. If the latter, you may win.

Contact your lawyer.  If you don't have one, try www.attorneypages.com and check his or he record at the Kansas State Bar.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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