August 1, 2016 — Question: I am operating as a transaction broker for both the buyer and the seller in a property purchase. The parties used the “AS IS” Residential Contract for Sale and Purchase (Florida Realtors/Florida Bar-ASIS-4x, Rev 2/16), and well before the end of the inspection period the buyer mailed a termination letter to the seller. The buyer followed up by sending a Release and Cancellation of Contract for Sale and Purchase (RC-3x, Rev 10/00), asking that the deposit being returned to the buyer.

The seller refuses to sign arguing that the buyer did not provide an adequate reason for termination. The seller and I have fought over this issue for a month now, and he stubbornly says he will never change his mind. The title company acting as escrow agent says it will not release the deposit to the buyer, but will instead give the deposit to the county court by filing an interpleader action.

What can I do next to help the buyer get the deposit?

Answer: There isn’t much for you to do at this point. The buyer and seller need to resolve their legal dispute, either on their own or with the help of lawyers.

You may be thinking the buyer is entitled to his deposit, since Section 12 of the Contract provides that “If Buyer determines, in Buyer’s sole discretion, that the Property is not acceptable to Buyer, Buyer may terminate this Contract by delivering written notice of such election to Seller prior to expiration of the Inspection Period.” The facts demonstrate this is exactly what occurred, but there is a big difference between having a good legal case and actually recovering the deposit.

Since the seller refuses to end this amicably, the buyer must now decide on a legal strategy to pursue the deposit. Many factors go into planning an effective legal strategy, such as the amount of money in dispute, the resources of both sides and the persistence of each party. Sometimes these factors are just as important, or even more important, than whether or not the buyer has a good case. If the buyer is victorious in court, the buyer will then have a judgment that entitles them to money from the seller. Hopefully the seller will comply with the judgment and pay the buyer quickly, but if not, buyer may need to take additional steps to enforce the judgment. There will also be an appeal period during which either party may ask a higher court to review the lower court’s decision.

Please keep in mind that every case is different, so you should always encourage the parties to consult with a lawyer to get perspective on the strengths and weaknesses of their cases, along with the equally important questions of how much it might cost to pursue the matter and how long it might take.

Joel Maxson is Director of Member Legal Services

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