You receive a letter from a Florida condominium developer saying you missed your closing, are in default, and have lost your deposit. But you never received a warning—or perhaps you never received a valid closing notice at all. Can the developer do that?
It depends on the purchase contract and the circumstances. Florida law does not give every condo buyer a universal notice or opportunity to cure before a developer can claim default. Many contracts, however, require the developer to send a closing notice, a default notice, or both. Whether the developer complied with those requirements can determine whether its claim to your deposit is valid.
A developer’s statement that you are in default does not, by itself, settle the dispute.
What Does “Default” Mean in a Pre-Construction Condo Contract?
A buyer defaults by failing to perform an obligation required by the purchase agreement when that obligation is due. Depending on the contract, alleged defaults may include failing to make a scheduled deposit, provide required documents, or close on the unit.
The first question is whether the obligation actually became due. If the developer was required to give you 30 days’ written notice of a closing date, for example, the date and delivery of that notice matter. So do any contract conditions the developer had to satisfy before demanding that you close.
Does a Florida Developer Have to Send a Default Notice?
Only if the contract or an applicable legal requirement calls for one. A purchase agreement may require written notice describing the breach and give the buyer a stated number of days to fix it. Another agreement may say that missing a properly scheduled closing is an immediate default.
These provisions must be read together. A contract might require advance notice to schedule the closing but provide no separate cure period after a missed closing. In that situation, the key dispute may be whether the developer properly scheduled the closing in the first place.
Do not assume that the absence of a separate “notice of default” defeats the developer’s claim. Equally, do not assume the developer can skip a notice or cure step expressly required by your agreement.
What If I Never Received the Closing Notice?
Review the contract’s notices clause before deciding whether notice was effective. It may identify:
- The address or email address where notice must be sent;
- Who must receive a copy, such as your attorney;
- Whether email, overnight delivery, or certified mail is permitted;
- When notice is treated as delivered; and
- Whether you had a duty to update your contact information.
A contract may treat a notice as delivered after it is sent by an approved method, even if you did not personally read it. On the other hand, sending notice to the wrong address or using a method the contract does not permit may give you grounds to dispute the claimed default.
Ask for the notice itself and the developer’s proof of delivery. Dates, addresses, tracking records, email headers, and attachments can be decisive.
Can the Developer Keep My Deposit If It Says I Defaulted?
Florida’s condominium escrow statute provides for the release of certain escrowed funds to the developer if the buyer defaults under the purchase contract. It also provides for payment to the buyer when the buyer properly terminates under the contract or the condominium statute. The developer’s entitlement therefore depends on whether a default actually occurred and on the applicable escrow and contract provisions.
The amount at stake may also depend on whether all your payments remain in escrow. Under specified conditions, Florida law permits a developer to use certain payments exceeding 10% of the purchase price for construction costs before closing.
Do not rely on the fact that a deposit was initially placed in escrow as a guarantee that the entire amount is still there. Request an accounting and the identity of the escrow agent.
What If the Developer Was Not Ready to Close?
A developer’s own performance may affect whether it could properly demand yours. The answer depends on the contract, the closing conditions, and what was actually delivered or completed. Relevant questions may include:
- Did the developer satisfy the conditions for issuing a closing notice?
- Was the unit and required documentation ready as the contract required?
- Did the developer provide the disclosures required by law?
- Was the stated closing date permitted by the agreement?
- Did the developer change the closing date or agree to an extension?
Florida law also gives buyers of developer-sold residential condominium units particular rights concerning required disclosure documents and certain materially adverse amendments. Those rights have their own conditions and deadlines; they should not be confused with a general right to cure a missed closing.
What Should I Do After Receiving a Default Letter?
Act promptly, even if you believe the developer is wrong. A useful first step is to collect the signed purchase agreement, amendments, payment receipts, closing notices, emails, and the default letter. Then identify the exact provision the developer says you breached and compare it with the contract’s notice, closing, cure, and deposit provisions.
In particular:
- Preserve the envelope and electronic records. They may show when and how notice was sent.
- Request the developer’s proof of notice. Ask for the complete closing and default notices and their delivery records.
- Check every deadline. A contract may require a prompt written objection or provide only a short cure period.
- Contact the escrow agent when appropriate. If a closing is pending and you dispute disbursement, seek legal advice immediately about any written notice required to protect your position. Florida’s escrow statute specifically addresses written notice of a dispute received by the escrow agent before disbursement at closing.
- Get the contract reviewed before conceding default or signing a release. An informal phone conversation may not preserve rights that the agreement requires you to assert in writing.
Frequently Asked Questions
Can a developer declare me in default without giving me a chance to cure?
Possibly. There is no cure period that applies to every Florida pre-construction condo purchase. Your contract may provide one, and its wording controls how and when it applies.
Is a closing notice the same as a notice of default?
No. A closing notice sets or confirms when the buyer must close. A default notice alleges that an obligation was breached. Your contract may require one, both, or a particular sequence.
If I did not open the developer’s email, was notice invalid?
Not necessarily. The contract may permit email notice and define delivery without requiring proof that you opened it. The email address used, the contract language, and evidence that the message was sent all matter.
Does a default letter mean I have automatically lost my deposit?
No. The developer may claim the deposit, but whether it is entitled to the money depends on the contract, the facts, and applicable law. The letter is the developer’s position, not a final determination of your rights.
Speak With a Florida Real Estate Deposit Dispute Lawyer
A dispute over notice can turn on a single contract sentence or delivery record. If a developer has declared you in default or threatened to keep your pre-construction condo deposit, J.P. Gonzalez-Sirgo, P.A. can review the agreement, the notices, and the payment history to assess your options. Contact the firm promptly, particularly if a cure, objection, or escrow deadline may be approaching.
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.
