You paid a substantial deposit on a Florida pre-construction condominium. After the transaction fell apart, the developer declared you in default, kept your money, and put the unit back on the market. Now you discover that someone else purchased it—perhaps for more than you agreed to pay.
Can the developer keep your deposit and collect the resale price, too?
Sometimes, yes—but a resale does not settle whether the developer was entitled to your deposit. The answer depends on the purchase agreement, the remedy the developer is asserting, and the circumstances surrounding the alleged default.
For buyers facing a six-figure deposit loss, the important question is what legal and contractual basis supports the forfeiture.
Why the Contract’s Damages Provision Matters
Start with the buyer-default and seller-remedies provisions. Look for terms such as “liquidated damages,” “actual damages,” “sole remedy,” “resale,” and “refund.”
Liquidated damages are a predetermined amount the parties agree will compensate for a breach. Florida permits these provisions, but they must satisfy legal requirements. Anticipated damages must not be readily ascertainable, and the stipulated sum must not be grossly disproportionate to reasonably expected damages in a way that reveals a penalty.
A contractual label alone does not establish enforceability.
Does a Profitable Resale Automatically Require a Refund?
No. An enforceable liquidated damages provision can fix compensation in advance rather than require a later accounting of the seller’s precise loss.
However, Florida also recognizes equitable relief from a forfeiture that is unconscionable in light of the circumstances at breach.
A favorable resale can therefore be relevant without automatically defeating the forfeiture.
For example, suppose you contracted to purchase a condominium for $1 million and paid a $200,000 deposit. After declaring a default, the developer resold for $1.1 million.
Those numbers justify asking questions. They do not, by themselves, prove that the developer must return $200,000. An attorney would need to examine the remedy provision, the circumstances at breach, and the underlying transactions.
What if the Contract Bases Recovery on Actual Losses?
Some agreements use a resale calculation or require the developer to deduct specified losses and expenses before returning a balance.
If your contract contains that language, request a written accounting showing:
- The original purchase price and total deposits.
- The resale contract and closing date.
- The resale price and buyer concessions.
- Each expense charged against your deposit.
- The calculation of any balance the developer claims it may retain.
A deed’s recorded consideration may provide a starting point, but the closing documents can reveal credits or other terms that affect the comparison.
Do not assume every developer contract uses the same formula. The exact language matters.
Can the Developer Keep the Deposit and Sue for More?
A provision allowing the seller to choose between retaining a deposit as liquidated damages and pursuing actual damages raises a significant enforceability issue.
Have counsel examine both the remedies listed in the contract and the remedy actually asserted.
Was the Buyer Properly Declared in Default?
Before focusing entirely on resale profits, reconstruct why the original transaction failed.
Bring your attorney:
- The closing notice and any extensions.
- Every default and termination notice.
- Proof of when and how notices were delivered.
- Communications about financing, construction, or completion.
- Your requests to close, cure an issue, or obtain an extension.
- Any claim that the developer failed to perform.
Ask counsel to compare the timeline with the agreement’s closing requirements, notice provisions, and cure procedures. The developer’s description of events should be checked against the documents.
Florida Condominium Escrow Requirements Also Matter
Florida Statutes section 718.202 regulates deposits for qualifying condominium sales before substantial completion. It generally requires escrow protection for payments up to 10 percent of the price, subject to authorized alternative assurances, and separately regulates amounts above that threshold.
The statute addresses refunds following proper termination and disbursement following buyer default. It also provides that noncompliance can make the contract voidable by the buyer, with a refund if properly voided. These rules require a separate review of how the funds were held and used.
Ask for deposit receipts and escrow records, particularly when the developer says the money has already been spent.
What Should You Do After Learning Your Unit Was Resold?
Preserve the evidence before discussing a settlement. Save listings, advertisements, emails, text messages, payment confirmations, notices, and any available resale information.
Organize a short timeline showing when you signed, paid each deposit, received closing or default notices, and learned of the resale.
Before signing a release or accepting a partial refund, have an attorney review the proposed terms. Provide the complete agreement, including exhibits and amendments, rather than only the page discussing deposits.
Frequently Asked Questions
Does “nonrefundable deposit” end the discussion?
Do not stop your review at that phrase. Have counsel examine the complete default provision, the claimed breach, and any applicable statutory rights.
What if the developer sold for the same price?
Ask which remedy governs and what expenses or losses the developer claims. Equal sale prices alone do not resolve the contract analysis.
What if the unit has only been listed for resale?
An asking price is not a completed transaction. Preserve the listing, but distinguish marketing claims from an executed resale contract and closed sale.
What documents should I bring to a deposit-dispute consultation?
Bring the purchase agreement, amendments, deposit records, notices, communications, and all available resale information. Include any settlement proposal or release.
Speak With a Florida Real Estate Deposit Dispute Attorney
If a developer kept your deposit and resold your condominium, a careful review can identify the contract provisions and evidence that matter.
J.P. Gonzalez-Sirgo, P.A. represents buyers in Florida real estate deposit disputes. Contact the firm to discuss your purchase agreement, the alleged default, and the developer’s claimed right to retain your money.
Contact Florida Attorney J.P. Gonzalez-Sirgo by dialing his direct number at (786) 272-5841, calling the main office at (305) 461-1095, or Toll Free at 1 (866) 71-CLAIM or email Miami Attorney Gonzalez-Sirgo directly at jp@yourattorneys.com or by text at (305) 929-8935.
This article is for informational purposes only and does not constitute legal advice.
