In a society dominated by checking accounts and credits cards it is unlikely that many buyers will offer a cash deposit. While a cash deposit should be the first choice of every seller, owners should be prepared for the majority of buyers who do not offer hard currency.
The most common alternative to cash is the use of a check. Checks, unlike cash, can bounce or be stopped. With checks a seller will know within a few days if there is a problem. While some sellers with a problem check may file suit for breach of contract, misrepresentation or fraud, others will just seek a new buyer. Consult an attorney if a check is not being honored.
A promisory note is similar to a check except that it is not drawn on an account with a lender, usually has a longer time frame, and may contain a provision for interest. A note is used when a buyer does not have cash or a sufficiently large checking account to cover the deposit.
This could happen, for example, when a buyer has money in the stock market. It will take several days to convert securities to cash.
A defaulted promisory note is more troublesome than a check because the term is generally longer. If you accept a 30-day promisory note it will take a month to find out if the buyer will make good on it. If the note is not good you have a problem because 30 potential selling days have passed. To some extent sellers can protect themselves by insisting on the shortest term possible for the note.
A confessed judgement note is similar to a promisory note except that the buyer waives many legal rights if the obligation is not paid. In the Washington area, according to a local real estate attorney, confessed judgement notes are not used in the District and have questionable value in Virginia. They are used in Maryland.Sellers should consult an attorney or broker before accepting a confessed judgment note.
A note effectively represents a loan from the seller to the buyer to cover the value of the deposit. Sellers should certainly seek interest on this loan while understanding that interest on a deposit note is a minor point.
One other form of deposit consists not of cash but of goods. Sellers may accept a car, boat or whatever as consideration for the sale. Generally though, sellers are best served by taking deposits with a clearly understood cash value.
It is possible to have a real estate sale where there is not a material deposit. Sales that are based on so-called "good consideration," such as love and affection, are infrequent however. It is far more likely that a seller will require, and a buyer will offer, something of value to seal the sales agreement.
Peter G. Miller teaches the course, "How to Sell Your Home - With or Without a Broker," through the Consumer Information Institute in Washington.