Ep. 77 – Deposits. First Vs Second Deposit

Matthew Maschler:
Welcome to the Real Estate Finder podcast. I’m Matthew Maschler, real estate broker with the signature real estate companies here in the great state of Florida, and with me, um, not the co-host. Um, Stacey Garcia is out today. She’s doing closings and walkthroughs and getting shit done. She has a ton of properties pending, so she’s out in the field selling and closing. Uh, so with me today is, uh, my friend and real estate agent, uh, Preston Smith. How are you, Preston?
Preston Smith : I am wonderful. How about yourself, Matthew? I’m doing good. Doing good.
Matthew Maschler: Thanks for joining me. Keeping me company here in the podcast studio. Of course. All right. So, um, what I wanna talk today is about deposits. Um, a lot of, uh, my agents lately have been asking me questions about deposits, and I know I’ve talked about on the show, uh, the deposits. Um, I know I’ve talked about it probably a few times, um, but I’m gonna name the episode deposits and that way people can refer to this episode.
When you make an offer on a property, um, the most of the time in Florida, we use the Florida as is contract. There’s other forms of contracts. Uh, but for the purposes of this conversation, we’re gonna be talking about the Florida as is contract. Um, it, it’s called an offer while you’re submitting it to the seller, while the buyer, you know, it’s generally started by the buyer. Buyer submits it to an offer to the seller, but the form itself is called Florida, as is contract. Once it’s signed by all parties and exit fully executed, it’s the contract, but until it’s signed in, um, executed by all parties or if it, or until it’s rejected, it’s called the offer. So the offer is submitted, uh, or the offer is being drafted, uh, by the real estate agent, and there’s, uh, space in the, uh, fill in the blanks, uh, for two different deposits.
Um, the initial deposit, uh, sometimes called the good faith deposit. Uh, some, some old timers might call it the binder. Um, back in the day when we submitted these offers, we would submit them with a $1,000 check paperclip or stapled to the offer. Um, that way, when the buyer presents it to the seller, there’s some consideration for the contract. Why it was a thousand dollars. I, I don’t know, that was just the magic number. It didn’t matter the price of the house, it was always a thousand dollars. Mm-hmm. <affirmative>. Um, I started seeing that number go up to 3000 and 5,000. Um, and, and I think it was a really, really good practice because as a buyer’s agent, if you can get your buyer to actually take out their checkbook, they’ll sign a 15 page contract. But until they take out their checkbook and start actually filling out that thousand dollars deposit, like that makes it real for them.
And I always found that during that, at that moment, uh, the buyer became vested, uh, in the offer and, and more in the deal and started asking more, more questions and really understood, uh, the significance of what they were doing, uh, by actually putting some money in, in the deal. And then we would present the offer with the check, uh, because of the internet and email, even, even fax machines before that. And I’ve seen, um, offers get faxed in with a copy of the check faxed in. Um, obviously you can’t do anything with a copy of the check. So with emails, you know, the, the, the process of scanning these signed offers and scanning the check was a little ridiculous. And now that we have, you know, electronic signing, we don’t even scan anymore. So, uh, we had to adjust the way the offers were presented.
So generally, instead of a, a initial deposit, could faith deposit binder, uh, being included in the offer with a physical check, uh, it’s, it’s written in that it’s, that it’ll be within three days of acceptance. So, uh, so that’s what we do. Now, we, we draft the offer, and if it’s accepted, uh, the buyer then, um, makes that initial deposit. And then you go on to your next phase of the contract with is, which is inspections and, and due diligence. Um, we all know that in Florida, in in the as-is contract, the buyer can cancel, uh, within the as-is, uh, time period. Generally seven days can be more, can be less. That’s all negotiated, um, during that time period. The buyer can cancel for any reason. It doesn’t have to be anything wrong with the house. So, um, sometimes we call it, uh, as is with the right to renegotiate.
Uh, besides the inspection, and I’ll do an episode, uh, in a couple of weeks, I wanna put my thoughts together on things to look for during the inspection, uh, besides getting the house inspected, right, like things like, uh, the hoa, any assessments, any, any future, uh, plans that the HOA might have. Uh, a lot of things really to look o look out for during the inspection period. Uh, besides just having the inspector come in, uh, during the inspection, uh, period, uh, Biden can cancel for any reason. I like to time the second deposit till un until after the inspection period. So if you make the second deposit seven days, and you make the inspection period, seven days, you have a, a weird situation where on the one hand, you’re, you’re negotiating and you’re threatening to cancel the contract. On the other hand, you have to send a wire for the second deposit, and the second deposit’s usually more significant than that thousand dollars.
Sometimes it’s 5% or 10%, or 20%. Uh, sometimes it’s the whole contract. I mean, if you wanna really make your offer accepted, make it, uh, make the seller really want to take your offer above others, make a 50% deposit, put a hundred percent deposit in. If you have a 30 day close with a hundred percent deposit, now that seller really knows that you’re gonna, you’re gonna close. So, you know, let’s say it’s 5% or 10% or 20%, it’s a significant amount that you’re wiring. And if your agent wrote that your, um, inspection ends in seven days, your deposit’s due in seven days, it, it could be a very confusing, uh, seventh day, especially if those days end fall on a weekend, because inspection periods don’t, um, don’t, don’t end on weekends and holidays. The weekends and holidays are counted in the day count, but inspection periods are, are not, um, they can’t end.
So you can have a six day inspection and a seven day deposit due on the seventh day, and then all of a sudden your inspection is, uh, due after your, um, your second deposit is due because of the way if the inspection, uh, end it period ended on a Saturday, and it extends over until now Monday. Uh, so it’s a good practice to make sure that your second deposit is due a day or two. I, I wanna say, you know, from today forward, I wanna say three days, just like the contract is three days. Mm-hmm. <affirmative>, it gives, gives the buyer three days from inspection period, and it can clear a weekend including a three day weekend. Uh, so, um, so that’s the second deposit. And that should be due after, um, you can make your offer stronger with a large first deposit. Uh, there doesn’t have to be two deposits.
You can combine the concept. Um, but generally we lay out a first deposit, a second deposit, and then, um, and then on the offer, it’s, you know, the amount of cash to close, which is the rest of the money, unless you’re getting a mortgage. If you’re getting a mortgage of 80%, then, then, then that goes in, in how much the, uh, you know, on the, on the front page, it’s first deposit, check deposits, the amount of the mortgage, and then the remaining balances, the amount of money that the, uh, buyer needs to bring to the closing. Although that doesn’t include closing costs and title fees and other, and other fees. It’s just the, uh, it’s just towards the purchase price. Um, so that’s the first deposit versus the second deposit. First deposit a little bit smaller. It’s to bind the contract to get the seller to take the, uh, property off the market.
Um, and then that leads you towards your next phase of the contract, towards your inspections. Whereas the second deposit, uh, the, the real, you know, the real deposit, the, the, uh, the, the serious deposit, um, that generally comes in after the inspection. And it can be, you know, any amount, there’s no rule on how much it is, but on a cash deal, um, you want, as a seller, you want as much money there as possible. A lot of times on a cash deal, uh, the buyers will object to a large amount of money because they think they’re money will make them money. So they don’t, they’re not happy that, um, their, their money is tied up. I try to get them to understand that if their money is tied up at for 30 days, um, unless they’re making 12% interest somewhere else, right? One month of 30 days is one month.
If you’re making 12% a year, you lose, um, the, the opportunity to earn one month’s interest, which is 1%. And it’s not on the whole amount, it’s on 10% or 20% of the purchase price. You’re talking about schmitz. Um, and a lot of, uh, buyers can’t see the forest for the trees when, uh, when they’re upset that their, that their cash is, uh, held up. Uh, so long, I’ve, I’ve found myself, yeah, there are investors that are really worried about cash flow, and you can have a real conversation with them about, uh, that second deposit, how much it really should be and for how long. Uh, but I’ve really found there’s a difference between people who have the money and who just don’t have the money, and they’re stringing you along. And just like I said, writing the check is a good way to weed out the people that are stringing you along.
Uh, people blocking to that second deposit, uh, it, it should be a warning sign. I mean, I can’t tell you how many times as the buyer, I know my buyers don’t have the money. Um, they’re hoping to get it. They know they’ll get it. They have something to sell, they’re gonna free up the money, but they don’t have it. Um, and they write that, they don’t, they write that off that offer, and they, you know, that, that they have, uh, that closing date in 30 or 45 days, and they’re pretty sure they’ll have the money by then. But, uh, but, but yeah. Yep. Not always. Not always. So that’s how the deposits work on the offers and contracts, uh, for sale. Uh, I don’t remember this specific question. I know somebody asked me a question about the second deposit. I don’t remember what it was, like, how high does it have to be?
Or do you even need to be the second? I don’t remember who asked me the question and exactly what the question was. So I’m hopefully hopeful that this high level view, uh, answered the question about the, uh, deposits in the sale contract. Now, we’ll switch gears a little bit to the rental, uh, to rent the rental market. People want to rent properties in Florida, and they have questions for me about rentals in the rental deposit. And the first thing that happens to me is I have to ask the person who’s asked me this question, what they’re talking about with the deposit, because there’s two deposits in the life of a rental, and very often people confuse them. Uh, there’s no initial deposit, there’s no second deposit, there’s no escrow. There’s no escrow. Cause there’s no closing. Yeah. So what you have in the rental market is, remember I told you about that, thousand dollars mm-hmm.
<affirmative> to binder that, that binder that consideration to make the contract, right? Yeah. Along with the offer, here’s a thousand dollars mm-hmm. <affirmative>. So an offer on a rental is called a contract. Two lease, CTL contract two lease. And you’re basically saying, Mr. Landlord, right? I am, I would like to rent your property, and I would like to rent it at the following terms. And you list all of the terms in the contract to lease, and you make an initial deposit, and that’s the, the binder. That’s what gets the landlord to agree to negotiate with you. And if they agree to your terms, they’ll take it off the market. They won’t show it to other people. They won’t enter into a lease with another person that, that they will reserve that property for you once they, once you agree to the terms of the contract to lease.
And once you execute the contract to lease. So you need to have an initial deposit on the contract to lease later on during the lease. Everybody knows that there’s a security deposit. And the security deposit is not the landlord’s money. The landlord in Florida is required to keep that, uh, that money in a separate account, uh, for the benefit of the tenant, and they can’t commingle that money with their regular checking account. Um, and that’s the security deposit of the lease. It’s usually a month’s rent, and that’s what’s used if there’s any damage, uh, to the property, uh, from the tenant, when the tenant le leaves, if the tenant breaks the lease early and violates the lease that way, or if they cause damage or anything, then they, uh, then the landlord has a security deposit. So they are totally separate. So if you tell me that you have a contract lease and you start talking to me about the security deposit, I’m like, whoa, whoa, hold your horses there.
Mm-hmm. <affirmative>, right? Yeah. Contract lease has a deposit and, um, the lease has a security deposit. Yeah. The security deposit is not a deposit the way in the, in the way in the offer for sale, it goes towards your purchase price. The security deposit doesn’t go against your rent. It doesn’t reduce the amount of money you have to pay later. The security deposit is to, so that the landlord is comfortable, uh, with the, uh, tenant, uh, living in the house. But the initial deposit in the contract to lease, um, is money that’s due, uh, when the contract to lease is signed. One of the reasons that this is confusing is quite often, um, the people in the contract to lease will, will, will tie this amount together. They’ll write in the contract to lease that. The initial deposit that’s due when you sign the contract to lease is the same amount as the security deposit under the future lease that will be signed.
Uh, and also that that money will be credited to the landlord for the security deposit. Um, I don’t like that. I don’t like that provision because, um, until the lease is signed, signed, I don’t know where that money is or stays or lives. Theoretically, you would give that money to the landlord and then landlord would set up the security account for the tenant. That’s what they should do. Um, I think of better practices just to call that the, the first month’s rent or, um, and let the landlord keep the money. But maybe that’s just because I’m a a landlord guy. Um, but also, um, that’s how the, the agents get paid, uh, out of the fir usually outta the first month’s rent. So I’d rather see that the, see that the customer write one check to signature real estate finder, a second check to whoever their, uh, the other party is hopeful, hopefully signature, um, but doesn’t have to be.
And then that the rest, uh, would go to the, uh, landlord, um, for their first month’s lease. And that way there’s no other obligations. Now, the problem with this, and it’s not solved by making the security deposit, is sometimes, uh, uh, tenants get a little skeptical. Like, okay, well what if, uh, what if there’s a problem later on and, uh, you know, I get to the property and then it’s not available and landlord doesn’t have the keys or something like that. How do I get that money back? Uh, that’s a real problem. Uh, there’s a leap of faith in rentals. There’s always a leap of faith in old deals, and there’s a leap of faith in rentals and, and you have to really make sure that you’re comfortable. Uh, the landlord and the tenant really have to make sure that they’re comfortable, uh, with each other.
Um, so, um, so I guess for now, we leave the, uh, deposit. Under the contract to lease as the security deposit. We ask, we, we give the money to, you know, we have the tenant give the money to the landlord. We ask that the landlord hold that money wherever they would eventually put their, um, security deposit under the lease. Um, and we leave it there. And then the next step is then a lease is prepared. Uh, the lease is prepared. It’s be used standard Florida, uh, form contract for lease. We use the terms that are in the contract to lease, uh, to fill that out. Um, if there’s a discrepancy between the lease and the contract to lease the lease controls, if there’s something in the contract to lease that’s not covered in the lease, generally, uh, that provision of the contract to lease, um, can be binding.
But you really, really wanna make sure that there’s any terms, uh, that you negotiated in the contract lease. You really, really wanna make sure those terms are in the actual lease. If you negotiated a renewal provision or an early termination provision, uh, you really, really wanna make sure that that is in the lease. You don’t, um, leave that in the contract lease and don’t include it in the lease. Because I would, if I was the other party, the landlord attendant that was, wanted to argue that, um, that the, uh, the term was intentionally left out of the lease, I would ar I would, I would say, listen, we, we negotiated during, from the time the contract, the lease was signed and the time the lease was signed, there were some further negotiations. And, and those terms were negotiated out. And that’s why we on purpose, did not include that in the lease.
I would, uh, really, uh, want to make sure that if you’re out there, if there’s a terminal, the contract lease, make sure it’s in the lease so you are protected. Um, one of my agents asked me the other day, uh, what if, uh, they sign the contract to lease and then the, the tenant doesn’t want to eventually sign the lease. Uh, I will say then they are in breach of contract. They sign the contract to lease it, obligated them to sign a lease. Both parties, uh, now must sign a lease. Uh, otherwise they are in breach of contract. And, um, then I don’t know what would happen to you. And I guess the one party would have to, uh, sue the other and presumably for the, um, you know, if it’s the landlord suing the tenant, uh, for that initial deposit. Um, but if the landlord has it in his pocket, uh, then the tenant’s gonna have to sue the landlord.
Um, I guess that’s why the landlord wants it in his pocket because if the, uh, tenant breaches, uh, the landlord just kind of keeps that money. If the, if the tenant doesn’t, uh, doesn’t then sue. But that is the remedy for breach of contracts in any, in any case, if, if you have a contract to, uh, buy or sell a property, um, and the seller doesn’t get out, you know? Yeah. You know, that is your remedy as you have to sue. So, um, so contract to lease, initial deposit, a lease is then prepared. Uh, one of my agents said, uh, should I show the form lease to my customer so that way they know what will be in the lease? I’ve said, that’s a great idea. I even think you should take the, uh, form lease and put it in the contract to lease as an exhibit.
Um, and that way, uh, later on when someone says, I don’t like this provision, I didn’t know this provision would be in there, and therefore I am canceling the contract to lease, no, you cannot cancel a contract to lease. You can’t cancel a contract. When you sign a contract. That’s a legally binding document. And you can’t, one person can’t unilaterally just cancel it and say, I don’t wanna be bound by this agreement that I signed. You cannot cancel a contract to lease. You cannot cancel a lease. I signed a lease. I don’t want it anymore. You can’t cancel a lease. If you shop on Amazon, you can, you have to look at their return policy. Most things you can return, some things you can’t. Um, but on a, when you sign a contract, unless contract gives you a right to cancel, you do not have the right to cancel.
You cannot cancel your contract a lease just because you don’t like the terms of the lease or you change your mind. You cannot cancel a lease. Uh, once it is signed, oh, I signed a lease now I decided I don’t wanna rent the property. I signed the lease. Now there’s Covid and I don’t want to go to the place. Now you signed a lease, you’re bound to the lease, you sign a contract to lease, you are bound, you are obligated to, uh, to uh, sign the eventual lease. Um, so it’s, you know, when you, when you write an off offer for sale, it’s easy to get out of the offer. You can withdraw the offer at any time. When you draft the contract lease, you can withdraw the offer before it’s accepted by the, by the landlord. But once it’s accepted by the landlord, you now have a legally binding contract.
And the, the de and just keep in mind the deposits, the initial deposit to bind the contract to lease and to have the landlord reserve the property for you, and then the security deposit in the lease. And those are the two, uh, deposits. And that is our show today about deposits. <laugh>. Preston, do you have a question about deposits? Um, no. You know, we learned about, uh, you know, with deposits and escrow that you could put them into interest bearing accounts. And I haven’t really seen that in the practice. I was just curious. If you won’t, you won’t see it cause there’s no interest. Okay. And, um, you’re, are, are, um, yeah, if you, if you’re, if you have a purchase contract that’s so big, if you’re selling a $12 million property and, uh, and the deposit’s gonna be held for six months, um, you can ask the lawyer if it’s a sale, you could ask the lawyer to put in, in an interest bearing account if you get the, um, escrow agent to agree mm-hmm.
<affirmative> to an interest bearing account. Um, but then you’re gonna negotiate on who’s gonna get the interest. Yeah. Um, it’s not worth considering. I haven’t seen it in Yeah. Over 20 years that I’ve been doing it. Um, I know my personal, uh, business escrow account doesn’t get interest. Mm-hmm. <affirmative>, um, when it used to, when I practiced in New Jersey, and it, and it used to be interest, uh, that interest would go to the state for the attorney fund for client protection. So the buyer, neither the buyer nor the seller ever got, uh, the benefit of that interest. And then, um, in the, uh, landlord tenant agreement, if the, uh, landlord, um, puts, you know, if you can agree, I don’t think that the landlord has to put it in an interest bearing account. Um, and again, you know, you’re talking about $5,000. Yeah. And there’s no interest on it.
Yeah. It was just interesting cuz remember I was learning about it and getting our license and stuff mm-hmm. <affirmative>, but I’ve never seen it, you know, out in the field and in practice. So I’m just curious if, you know, you’ve seen that mm-hmm. <affirmative>, um, the other thing I was gonna make a comment about was with the initial deposit for a purchase contract, I know that you can, you also have the option of, you can already have the, uh, deposit in escrow as opposed to doing the three day option. Like you can have, I mean, you can do anything you want. You can, yeah. You could have cash, you can have a check that you include with a include. You could do a wire, um, you, so you could put zero days or one day. Yeah. Uh, what you’re thinking about is, uh, the sophisticated buyer who buys a lot of properties, who keeps, uh, money just in their attorney’s escrow account.
Yeah. And then, and then you, so you put, you know, you put the initial deposit within one day mm-hmm. <affirmative>, and you get a letter from the attorney that says, uh, you know, that that’s confirmation. And it says, uh, you know, please, please be advised that I am currently holding X number of dollars for this transaction. Yes. And, uh, and you let the seller know that the, that the deposit is already made and in good funds, and it’s sitting there in a, uh, in an, in a, uh, in an account ready for the, ready for the, uh, ready for the closing. Yeah. Um, and then I, I did have one more question. You, you talked about it briefly earlier about, um, you know, the, the tenant camp back out of a contract to lease, but once it’s executed Yeah. Once it’s executed, um, but you know, the challenges that, you know, per the contract to lease that, you have to give that deposit to the landlord mm-hmm. <affirmative>. But if you don’t know the terms on the lease yet, you’re, you’re giving a deposit without knowing all the terms that you’re going to agree to the terms are in the contract lease. Yeah. But sometimes, isn’t there also like additional terms like in the lease that weren’t in the contract lease at times?
Well, in your, in your contract lease, that’s your offer, right? Yeah. Yeah. So you’re gonna put in the amount of your rent, right? You’re gonna, you’re gonna put in all these terms, you’re put in the amount of the rent when the rent starts. Mm-hmm. <affirmative>, you’re putting in the security deposit, any fees, pet fees, association deposits, you’re putting all these terms in the contract lease. Yeah. So the only thing you don’t know is, uh, the counter mm-hmm. <affirmative>. And if there’s a counter, you’re gonna adjust the contract release before it’s signed. Yeah. But once the contract release is signed, all, all the numbers will be known. Yeah. That’s true. I guess I’m thinking more of like, sometimes when, um, you see terms about, um, I’m trying to think of an example, uh, maybe of additional fees that may exist or certain responsibilities that are on the tenant that aren’t expressed in the contract to lease that may be on the lease.
Well, it won’t be. It can’t be. Okay. You don’t have the right to put it. You, you, you, once you sign the contract to lease, the landlord can’t then say, Hey, I want an extra $800 pet fee. Yeah. Or smoking fee. Gotcha. Right. It’s the contract lease is binding and all the numbers are on the contract lease. The lease will reflect the contract lease. Mm-hmm. <affirmative> just like the, the tenant can’t get out of it. The landlord can’t all of a sudden ask for more money. Yeah. Got it. Yeah. All right. Got it. All right. So thank you for joining us on the Real Estate Finder podcast. I am Matthew ler. I’ll be out next week, uh, because I will be attending, uh, WrestleMania in Los Angeles and I will not be back in time to, uh, record, uh, next week’s podcast. I will be back just in time to unpack and repack for, uh, Passover.
So happy, uh, WrestleMania to those of you who celebrate and happy, uh, Easter, happy Passover on, um, go Owls. Um, they are in the Final Four. Wow. Uh, we are hoping for a Bright Line series, uh, this weekend. If the owls and the Mi f fa U Owls and the Miami Hurricanes both win on Saturday in Houston, I won’t know cause I’ll be at WrestleMania. But if they both, uh, win, um, then on, uh, Monday the third, I’ll be at Monday Night Raw. But we will have the Bright Line Series, uh, between FA, U’S Owls and the University of Miami Hurricanes, uh, that will be in, in Texas, Houston, Texas, on, uh, Monday, April 3rd, the NCAA championship game. So hopefully Florida will be double represented, um, or, or at least, uh, one of our, our Florida teams will be represented. So, um, so yeah, so this was episode 77.
I’ll be out next week. Uh, hopefully someone will do episode 78 without me, and then I’ll be back, uh, the following week to not talk about WrestleMania or the NCAA Final Four. Um, but I’ll be here to talk about real estate and, um, either way, regardless of who wins Saturday by being in the Final Four, I am pretty sure the value of real estate in Boca Raton has increased. Uh, certainly the reputation of F aau, uh, has increased with this national exposure. And, uh, anybody out there who is a landlord, uh, in the F A U area, hopefully, uh, your, your values have increased. So, um, in the Real Estate Finder podcast, uh, world, in the Signature world, we hope that, uh, rents go up and that real estate values go up. Uh, and for those of you that are paying rent, uh, I am sorry about that, but you do, uh, want the markets to rise.
We want all markets to rise. And therefore that is one of the reasons we encourage you so much to, uh, buy your home. Cuz when you’re renting and you’re rooting against the market, um, it’s a little nutty. But when you’re a homeowner and you’re rooting for the, the market, uh, a lot of wealth is created in real estate. So you want to get into the real estate, you want to buy, uh, real estate. I remember some f a U graduates that I tried to sell, uh, small apartment by F fa U two. Um, and that has increased 100 fold, uh, in the 20 years or 15 years since, uh, since I’ve tried to sell them that unit. And, uh, yes, we want rising markets, so, uh, sorry tenants, but, uh, real estate will rise and, and, uh, Florida real estate with our bright line, um, uh, series between fa u owls and Miami Hurricanes, hopefully April 3rd, uh, will continue to, uh, raise things in, in the right direction. So go owls, go canes. And uh, and but for the rest of you that are listening, um, will be, will be listening, watching, uh, mostly, uh, wrestling this weekend. Uh, signature real estate finder, real estate finder.com. matt@realestatefinder.com. 5 6 1 2 0 8 3 3 3 4 press. And how do they get ahold of you? Uh, you can call me at (843) 532-1941 or email me at preston real estate finder.com. Preston, this weekend is gonna be showing some beautiful units, uh, in Miami. So very excited about that. Looking forward to hearing about that.
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