When the Deal Fails: What Happens to the Commission and the Deposit

Published October 10, 2026 · Recalde & Friedman, PLLC · For real estate agents

The commission is a matter of contract

Whether any broker is paid when a deal falls apart depends on the listing agreement, the buyer agreement and any compensation agreement between the brokers or with the seller. Look for:

• when the fee is earned: at closing only, at contract, or when a ready, willing and able buyer is produced;
• what happens if the seller refuses to close or defaults;
• what happens if the buyer defaults and the seller keeps the deposit; and
• whether a compensation agreement between brokers is payable "only at closing."

A change in the current AS IS contract

Earlier versions of the Florida Realtors/Florida Bar AS IS contract said in Paragraph 15(a) how a deposit paid to the listing broker after a buyer default was split between the listing and cooperating brokers. In the current version (ASIS-7x, Rev. 12/24, 2026 update), Paragraph 15(a) says only that the seller may keep the deposit as agreed liquidated damages or seek specific performance. It no longer addresses the brokers' share. So on current forms, whether a broker shares in a retained deposit depends on the listing agreement and any agreement between the brokers. If you're relying on an older contract, check which version the parties signed.

Who decides where the deposit goes

Not the agents, and not the escrow agent. The escrow agent disburses according to the contract, or a release signed by the parties. If it receives conflicting demands, the AS IS contract lets it keep holding the funds or deposit them with the court (Paragraph 13). See our release checklist and buyer default and liquidated damages.

If a broker is holding the deposit

Under § 475.25(1)(d)1., a broker who gets conflicting demands or has a good-faith doubt must promptly notify the FREC. The broker must then use one of four procedures: an escrow disbursement order, arbitration, interpleader or mediation. Rule 61J2-10.032 sets the deadlines. The statute also lets a broker return the deposit without those procedures when a buyer in good faith fails to meet the financing terms, or when a condo buyer cancels under § 718.503. See escrow deposit disputes.

Commissions and releases

A release and cancellation agreement between the buyer and seller settles their claims against each other. It may or may not release the brokers. If a broker is claiming part of a retained deposit, or claiming a fee from its own client, put that in writing. Don't assume the release covers it.

Hypothetical

Prevent it in the paperwork

• In listing and buyer agreements, say what happens to the fee if the deal fails.
• In broker-to-broker agreements, address retained deposits.
• Track contract deadlines closely. Most deposit fights are about whether someone defaulted at all. See counting deadlines.

Frequently asked questions