Q: I hired a broker to sell my house in Florida. The first buyer backed out, so we agreed that I’d keep part of their deposit. I kept working with the same broker, and eventually, someone else bought the place. The broker got their full commission from that sale. Now the broker is asking for half of the deposit from the first buyer who bailed. Am I supposed to give that to him? —Paula

A: Whether a real estate broker is entitled to a portion of a forfeited deposit depends mainly on what is written in the agreement between the broker and the seller.

While every situation is unique, the general guidelines for handling these claims are relatively consistent.

The first step is to review the listing agreement you have with your broker.

In Florida, courts examine the language of the agreement to determine whether a broker is entitled to a share of a deposit in the event of a buyer’s default. If the agreement clearly states that the broker will receive a portion of the deposit in the event of a buyer’s default, then the broker may have a valid claim.

On the other hand, if the agreement states that the broker is only paid if the sale closes, or if it remains silent on the issue, the broker is generally not entitled to any part of the deposit.

The courts have also denied brokers’ claims to forfeited deposits when there is no written agreement or when the agreement is unclear.

The law imposes certain duties on brokers, such as loyalty, full disclosure, and accounting. These fiduciary duties can impact a broker’s right to compensation, particularly if the broker’s actions or omissions affect the transaction.

If the broker did not disclose their intention to claim a share of the deposit before the second sale closed, that could also weaken their position.

In your situation, whether your broker is entitled to half of the deposit from the first buyer who defaulted will depend on the terms of your listing agreement. If the agreement explicitly gives the broker a share of forfeited deposits, the broker may have a valid claim.

Most of the listing agreements I have seen in my practice include a clause allowing the broker to receive a portion of the deposit received from a failed sale, but limit the total commission they can receive from the listing to a percentage of the purchase price, usually 3% to 6%.

If your listing agreement has this common clause, your broker will be limited to the full commission he received at the successful closing, and would not be entitled to a part of the deposit you retained from the failed attempt.

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