The listing agenst in Colorado have informed me it is non-refundable (at least for investors, owner occ has different rules), I haven't looked into this in a while so perhaps it has changed. Below is from HUD's broker's handbook.
Disposition of Earnest Money Deposits
The failure by a purchaser to close on the sale of property within the allowable
time period, including any granted extensions, will result in the forfeiture of the
entire earnest money deposit, except where the purchaser presents
documentation to HUD that one of the special circumstances described in
paragraph (B) below this section has occurred.
A. Investor Purchasers:
1. The failure by an investor to close on an uninsured (not involving FHA)
sale will result in forfeiture of the entire earnest money deposit.
2. Fifty percent of the earnest money deposit on an FHA-insured sale will be
returned to an Investor Purchaser where HUD (or a Direct Endorsement
Lender using HUD guidelines) determines that the Purchaser is not an
acceptable borrower.
B. Owner Occupant Purchasers:
1. The entire earnest money deposit will be returned to an Owner-Occupant
Purchaser who fails to close after the sales contract was signed due to:
• There has been a death in the immediate family (contract holder,
spouse, or children living in the same household).
• There has been a recent serious illness in the immediate family that
has resulted in significant medical expenses or substantial loss of
income, thus adversely affecting the purchaser’s financial ability to
close the sale.
• There has been a loss of employment by one of the primary
breadwinners, or substantial loss of income through no fault of the
purchaser.
• In the case of an FHA-insured sale HUD (or a direct endorsement
lender using HUD guidelines) determines that the purchaser is not an
acceptable borrower.
• For other good cause, to be determined by MCB.
2. In the case of an uninsured (not involving FHA) loan where, despite good
faith efforts by the purchaser, there is an inability to obtain a mortgage
loan from a recognized mortgage lender, 50 percent of the earnest money
deposit will be returned.
3. On either type of sale, forfeit 100 percent of the deposit on those
instances where no documentation is submitted, where the documentation
fails to provide an acceptable cause for the purchaser’s failure to close, or
where the documentation is not provided within a reasonable time frame
following contract cancellation. (e.g., 90 days).