I sent a demand letter via certified mail to the defendant. If the defendant refuses to sign or accept the certified letter can I proceed to file a claim in small claims court?

I sent a demand letter via certified mail to the defendant requesting a full refund of my earnest money deposit on a real estate transaction. If the defendant refuses to sign or accept the certified letter can I proceed to file a claim in small claims court?

Asked on September 30, 2017 under Real Estate Law, Nevada

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Yes, if you believe, in good faith, that you are entitled to a refund and they will not provide you one, your next legal recourse is a lawsuit which can be done in small claims (as long as the amount at stake is less than the limit for small claims).
Bear in mind that you are only entitled to your deposit back if one or more of the following apply:
1) The contract for the RE says you can get the money back and get out of the contract under certain circumstances, and those circumstances apply and you fully complied with any requirements under the terms of the contract.
2) The seller materially (in an important way) breached the contract, such as by not being able to transfer clear title or not being able or willing to go through with the transaction and sell.
3) The seller lied about something important in relation to the property to get you to sign the contract to buy it (which includes not disclosing significant issues, like, say, flooding, of which he is aware and which would not be reasonably obvious when you viewed the property before putting in your offer), which would be fraud.
Otherwise, if they did not lie, are complying with the contract, and the contract doesn't let you out of it, you cannot get your earnest money back.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.