Legal Question in Real Estate Law in Illinois
Earnest Money
I had a new home I was selling and the $1,000 earnest money was made to my lawyer and put in his escrow. The deal was supposed to close by Feb 28th 2008 and fell through. I can no longer get hold of the buyer because her phone is disconnected and I told my lawyer to release the earnest money to me and he said he could not release it by Ilinois law without both parties agreeing and signing off on it. Can he refuse to give me the earnest money, or is he just leading me to beliece that?
2 Answers from Attorneys
Re: Earnest Money
Earnest money cannot be released without the consent of the parties or a court order
Re: Earnest Money
Your attorney is correct that as an escrowee or escrow agent (his official capacity holding the earnest money), he is a "fiduciary" for both parties. That means that under ordinary circumstances the signatures of both parties are needed. However, my guess is that when one party has disappeared, there should be some way around that requirement (although I've never researched it so I'm not sure).
The Contract probably says that if there's a disagreement, the earnest money gets turned over to the local clerk of the court. But in this case, there's no disagreement that you know of. It's just that one party has apparently abandoned any claim to the earnest money. It MAY be possible to send a certified letter to that party at their last known address and/or to their agent (if they have one) and then if they don't answer, turn the earnest money over. See if your attorney is able to do that. Good luck.
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