i am selling a home, the contract was a cash contract with no contingincies, the buyer failed to perform and the closing never happened due to improper funds. Am I entitled to keep the binder.
My initial reaction is to want to know who is holding the deposit. If an attorney or escrow agent is holding the deposit, you should consult with that party regarding the release of the money. If you are the one holding the deposit, then it is recommended that you consult with an attorney before taking any further steps. The contract and the events that transpired must be thoruoghly reviewed before any action should be taken.
The result depends on what your contract says. Have an attorney review the contract. If there is a lot of money at issue, then your failure to return the money will probably result in a lawsuit so be sure to get an opinion in advance and find an attorney that will defend the lawsuit if filed.
The answers already given are right on, but I wanted to point out another aspect of Earnest Money. I am not sure about Florida law, but in Wisconsin the Appellate courts have ruled repeatedly, and recently solidified the notion that if you keep the earnest money, in most cases, you are electing to accept that money as liquidated damages and have therefore relinquished your right to file a law suit for actual damages at a later date. You first need to be sure what the contract says, and that the actions of the other party constituted a breach, but you should keep in mind that if you think you may want to sue for actual damages, you probably cannot keep the earnest money and sue for actual damages, in Wisconsin at least, you get either one or the other, not both.
