|Connect With Us facebook twitter googleplus-20x20

Weekly Q&As

To whom do I return the earnest money when multiple buyers do not agree?

Release Date: 08/17/2017

This email address is being protected from spambots. You need JavaScript enabled to view it., Martin & Gifford, PLLC

QUESTION: I represent a married couple who submitted a successful offer to purchase a home. Both parties were listed as the “Buyer” in the offer, but the earnest money check was issued from an account only in the husband’s name. Shortly after due diligence began, the couple filed for divorce and terminated the contract. The wife is now asking that the earnest money be refunded to her. The husband disagrees. To whom should I write the check?

ANSWER: Paragraph 1(e) of the Offer to Purchase and Contract (Form 2-T) states that if an offer isn’t accepted, or if a condition of any resulting contract isn’t satisfied, then the Earnest Money Deposit (“EMD”) must be refunded to “Buyer.” The term “Buyer” is defined in paragraph 1(b). Also see paragraphs 4(f), 8(n), and 12 for similar language. Unless you have agreement from all the buyers listed in an offer or contract for some other disbursement, you should issue the EMD to all “Buyers” listed in paragraph 1(b).

If you do not feel comfortable writing a check to all “Buyers,” you may also deposit the money with your Clerk of Court pursuant to N.C.G.S. § 93A-12 since you received the EMD in your fiduciary capacity.


NC REALTORS® provides articles on legal topics as a member service. They are general statements of applicable legal and ethical principles for member education only. They do not constitute legal advice. The services of a private attorney should be sought for legal advice.

© Copyright  2017. North Carolina Association of REALTORS®, Inc. This article is intended solely for the benefit of NC REALTORS® members, who may reproduce and distribute it to other NC REALTORS® members and their clients, provided it is reproduced in its entirety without any change to its format or content, including disclaimer and copyright notice, and provided that any such reproduction is not intended for monetary gain. Any unauthorized reproduction, use or distribution is prohibited.