"We Can't Close": Anticipatory Repudiation in Florida Real Estate Contracts

Published October 9, 2026 · Recalde & Friedman, PLLC

The email nobody wants

Two weeks before closing, the other side's agent writes: "My client can't close." Sometimes it means a short delay. Sometimes it means the deal is over. How you respond can affect who keeps the deposit and who may owe damages.

What anticipatory repudiation means

Anticipatory repudiation happens when one party, before its performance is due, clearly and unequivocally says it won't perform. The other party doesn't have to wait for the closing date to come and go. It may treat the contract as breached and pursue its remedies.

In Hospital Mortgage Group v. First Prudential Development Corp., the Florida Supreme Court held that a party's unequivocal withdrawal from a contract was an anticipatory repudiation. But the injured party still had to show that it had met the conditions of the contract, or would have been able to, before it could recover damages. A party that couldn't have performed anyway can't recover for the other side's repudiation.

Is it really a repudiation?

Many "we can't close" messages aren't unequivocal. Compare:

• "My client won't sell at this price and won't sign the deed." This is likely a clear refusal.
• "The lender needs another week." This is a request for an extension, not a refusal.
• "The seller is having trouble getting the estate documents." This is a performance problem that may fall under the title or other provisions.
• "My buyer is reconsidering." This is ambiguous.

Treating an ambiguous message as a repudiation and walking away can backfire, because the party who stops performing may become the defaulting party. When in doubt, ask in writing for a clear answer by a stated date, and keep performing.

How to respond

1. Ask for clarity in writing. For example: "Please confirm by [date] whether your client will close on the Closing Date." Notices under the FR/BAR contract must be in writing and may go by mail, fax, personal delivery or email, including to the broker or attorney for the other party (Standard O).
2. Keep performing. Keep financing in place, meet your own deadlines, and be ready to close. That readiness is what the Supreme Court said the non-breaching party must be able to show.
3. Don't sign a release by reflex. A mutual release usually waives claims. See our release checklist.
4. Know the remedies. For a seller who refuses, see buyer remedies. For a buyer who refuses, see the deposit as liquidated damages.
5. Mediation first. Paragraph 16 of the AS IS contract requires mediation before litigation, except for injunctive relief.

Repudiation vs. force majeure

Sometimes a party can't close because of a hurricane, a government shutdown or a similar event. Standard G, Force Majeure, extends affected deadlines a reasonable time up to 7 days after the event stops preventing performance. If the event continues more than 30 days past the closing date, either party may terminate and the deposit is refunded. That isn't a repudiation, and the contract treats it differently.

For agents

• Forward the message to your broker and to the closing agent.
• Don't give legal conclusions about who is in default. Recommend that your client get legal advice.
• Preserve the full email and text chain.

Hypothetical

A seller's agent emails the buyer's agent: "My seller has decided not to sell. Please send a release." The buyer's agent replies the same day asking the seller to confirm in writing, by a specific date, whether it will close on the closing date, and confirming that the buyer remains ready, with loan approval and funds available. The seller confirms it won't close. The buyer now has a clear record of the repudiation and of its own readiness, which is what it would need to pursue the remedies in Paragraph 15(b). Had the buyer simply signed the release, those remedies would likely have been given up.

Keeping the deposit question separate

Even when one side clearly refuses to close, the escrow agent won't release the deposit on the strength of an email. Under Paragraph 13 of the AS IS contract, it disburses according to the contract or the parties' agreement, and it may hold the funds or deposit them with the court if demands conflict. Each side should send its written demand to the escrow agent, citing the contract paragraph it relies on. See escrow deposit disputes.

Frequently asked questions