I signed an as-is purchase contract, decided I didn't want to go through with the purchase, and sent my cancellation notice within the 15 day time frame in the contract. The broker refuses to return my escrow because the seller wants to dispute and claim the escrow, stating they took care of some items that were brought up in the home inspection. The contract did not require the seller to repair the items; they did so on their own. The contract states I can cancel and request refund of my escrow ***at my discretion*** within the 15 day time frame.
Can the Florida Real Estate Commission enforce return of my escrow deposit?
Real Estate Attorney
The Florida Real Estate Commission has certain powers over real estate brokers - but not over parties to a contract that are not licensed persons (ie: the buyer and the seller). The exception is if the buyer and seller submit themselves to a binding arbitration or other review by FREC, in which case the resulting findings and order would be court enforceable.
Here the problem is not with the broker, it is with the seller. What needs to be done is to follow the contract. Your contract probably has an arbitration clause under the "default" paragraph. If not what needs to be done is the broker needs to either go to FREC for a resolution (if that provision is in the contract) or "interplead" the money into the court, which essentially says to the court, "I have this money that two parties both say they are entitled to, and I have no claim to the money as I am just holding it - so please let me give it to the clerk of the court and let the parties dispute whose money it is in the court."
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Your answer lies in both the purchase and sales agreement that you signed and the actions of the F.R.E.C. which licenses, regulates and disciplines Florida licensed brokers and associates. If the seller refuses to sign off on the release of your earnest money deposit, (which it sounds as though he or she should), then the broker MUST notify F.R.E.C. of the dispute to avoid being sanctioned by F.R.E.C., even though F.R.E.C. does not have direct control over your contract. Typically the broker will then follow the directions of F.R.E.C. in dispersing the money. If F.R.E.C. directs the broker to disperse the money to you, but the seller continues to refuse consent, the broker will have no alternative but to file an interpleader law suit and deposit your earnest money into the registry of the court, so that the court can then make a final decision as to entitlement, or initiate mediation or binding arbitration, depending on the terms of your contract. Be aware that if an interpleader suit is filed, the broker is entitled to have any attorney's fees incurred in filing the suit deducted from your earnest money deposit. However, the seller would still be responsible for your entire earnest money amount. Hopefully, if the seller discovers he or she could end up paying out money, he or she comes to their senses.
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