Cut Out of a Real Estate Commission in Florida? When It Stops Being a Contract Dispute and Becomes Fraud

Question one: were you the procuring cause?

In Florida, a broker who is the procuring cause of a sale is generally entitled to the commission, even if the broker was not there at closing. Procuring cause is about the chain of events. Courts look at who introduced the buyer to the property, who kept the negotiations going, and whether the sale that closed grew out of the broker’s efforts or out of something independent.

The evidence that wins procuring cause disputes is usually ordinary: the first email or text introducing the property, showing records, the buyer’s questions, notes from calls about price, and messages with the listing agent. If you are reading this before a deal has fallen apart, start saving those records now.

In the right case, procuring cause can be decided by the judge before trial. In our $47.83 million verdict, the court granted summary judgment on procuring cause, finding that our client brought the buyers and seller together, stayed involved in the negotiations and secured the sale price.

Question two: how were you cut out?

If the buyer simply found the property on his own, or another broker did the real work, you may not have a claim at all. If you were the procuring cause and the parties just refused to pay, you likely have a contract claim for the commission. That is a real case, but it is usually a case about one number.

The picture changes when the cut-out was deliberate and dishonest. Watch for these patterns:

• A buyer says he is no longer interested, and an offer on the same property appears shortly after.
• The offer comes from a relative, a friend, a new agent or a company that did not exist when you were working the deal.
• The closing documents show credits or side payments that look a lot like the commission you earned.
• People involved stop answering, or tell you to sue them.

When someone lies to you so the deal can close without you, the law may provide more than a contract claim. Depending on the facts, claims can include fraud, tortious interference with your business relationship, and civil conspiracy when two or more people act together to do it. Those are tort claims, and tort damages are not limited to the commission. They can include the full harm the conduct caused.

Punitive damages: a high bar, but a real one

Florida does not let a plaintiff simply add a punitive damages claim to a complaint. The court must first find a reasonable showing, through evidence in the record or proffered by the plaintiff, that provides a reasonable basis for recovering punitive damages. (Fla. Stat. § 768.72(1).) At trial, the jury may award punitive damages only if it finds, by clear and convincing evidence, that the defendant was personally guilty of intentional misconduct or gross negligence. (Fla. Stat. § 768.72(2).)

That standard is meant to be hard to meet, and most commission cases will never come close. But when the evidence shows a plan to cut a broker out, it can be met. In our case, the court held an evidentiary hearing on the punitive damages proffer more than a year before trial. Our client testified and was cross-examined, and the court found that the conduct was “intentional, pre-planned, conceived actions.” The jury later awarded $28 million in punitive damages on a deal with an $84,000 commission.

Deadlines matter

Florida’s limitations periods depend on the claim. An action founded on fraud generally must be brought within four years. (Fla. Stat. § 95.11(3)(i).) Contract and other claims have their own deadlines. Because the evidence in these cases lives in texts and emails that people delete, the practical deadline is much shorter than the legal one.

What to do if you think you were cut out

1. Save everything now: texts, emails, showing records, MLS history, notes and any written agreement.
2. Write down a timeline while you remember it: first contact, showings, price discussions, the date you were told the buyer lost interest, and when the property went under contract.
3. Pull the public records: the deed, the buyer entity, its formation date on Sunbiz, and the recorded closing documents.
4. Do not threaten or confront the parties in writing before you have advice. What you say can be used later.
5. Talk to a lawyer who tries these cases about whether you have a commission claim, a fraud claim, or both.

We represent brokers and brokerages throughout Florida in commission and procuring cause disputes, including cases built on fraud, interference and conspiracy. Call 305-748-3789 for a free consultation. Meetings by appointment only.

The $47.83 million figure was a jury verdict. Post-trial proceedings may affect the final judgment and amounts recovered. This article is general information, not legal advice for your situation. Reading it does not create an attorney-client relationship. Past results do not guarantee a similar outcome.