The question
I am a real estate agent. I represent the seller of a property. We received an offer to purchase, contingent upon the sale and close of a home in another state, offering zero as an earnest money deposit. We countered the offer with a number of items, one being “Buyers to provide a non-refundable $6,000 earnest money deposit (equivalent to 1% of the purchase price) to be held in the escrow account of (my brokerage). EMD shall be applied to buyer’s down payment upon closing. In the event that seller accepts a viable, non-contingent offer, EMD shall be returned to buyers in full”. The buyers agreed to the terms of our counteroffer. They are now withdrawing based on inspections and expect to receive the EMD back in full. My seller specifically included that the EMD is to be no -refundable. The buyer’s agent claims the EMD should revert back to the buyers regardless of the “non-refundable” portion. Can you please help me understand this?