I’m pretty sure she’s wrong and her attorney should know better. The earnest money is in Escrow not in your pocket. It is easily refundable if her offer is not accepted because she didn’t want to match. You were smart to put that clause in the sales contract. The buyer has 48hrs to match the offer. If she matches the offer then you have to take hers. If she refuses, then the escrow company issues her a check for her earnest money deposit.
The reason the check was initially cashed was to make the amount liquid.
In order for there to be consideration, the check must be liquid. I’m pretty sure that checks aren’t considered to be cash until they are actually cashed. From a legal perspective.
Earnest Money and taking additional offers. - Posted by Ed Snyder
Posted by Ed Snyder on October 18, 2003 at 17:23:54:
I have a signed contact for 282,000. The contact has statements saying “Seller (me) has the right to continue showing property and taking offers. Buyer has a 48 hour right of refusal or meet higher offer” The buyer gave my attorney an earnest money check for 1000.00. I got a new offer for 289,000 and the original buyer is saying that because the check was cashed by the attorney and put in an escrow account that the offer for 282,000 is valid. The buyer is willing to pay 289,000 but she says her attorney told her she doesn’t have to because the check was cashed and therefor the contact for 282,000 is valid and must be enforced. Somehow this doesn’t seem fair, if the above wording was in the contact.