Quick Summary
- An assignee steps into the buyer’s shoes, not the seller’s: In Rubin v. Sailfish Point Property Owners & Country Club Ass’n (Fla. 4th DCA, Oct. 7, 2026), the court held that a purchase contract’s prevailing-party fee clause, which governed disputes between buyer and seller, did not let the assignees recover attorney’s fees from the original buyer who assigned the contract to them.
- The buyer could not undo the assignment: The court affirmed the trial court’s rulings that the assignment was supported by consideration even though payment was due at closing, and that there was no mutual mistake about the association’s approval, which concerned a future event.
- The decision is new and not yet final: The opinion remains subject to a timely rehearing motion, and the Sixth District Court of Appeal, which hears appeals from Collier and Lee counties, has not ruled on the same question.
Rubin v. Sailfish Point answers a fee question that agents in membership-approval communities should know about: when a buyer assigns a purchase contract and later fights with the assignee, the original contract’s prevailing-party clause may not apply between them. The Fourth District Court of Appeal reasoned that the assignee takes over the buyer’s rights, so a clause written for disputes between buyer and seller does not reach a dispute between two parties who both occupy the buyer’s position. Because the assignment itself had no fee provision, the court reversed an attorney’s fee award of more than $248,000. For Southwest Florida agents working in Naples and Bonita Springs club communities, where membership approval often stands between contract and closing, the case is a practical lesson in how assignments and backup offers should be papered.
What Happened in Rubin v. Sailfish Point
The dispute arose at Sailfish Point, a private club community in Martin County. Under the community’s declarations, a sale could not close without an approval certificate from the association. The buyer was already leasing in the community with association approval, but the association required a separate membership application before closing and then denied both the application and the buyer’s appeal.
The sellers had also signed a backup contract that would take effect only if the primary contract failed to close, and the association conditionally approved the backup buyer. To save the transaction, the original buyer assigned the purchase contract to an LLC owned by a couple who were already approved members, and the assignees agreed to pay the buyer $37,181.25. According to the opinion, the closing agent had advised that the contract remained valid and assignable, and the association indicated the assignees could proceed. Less than a day later, the association took the position that the contract had terminated automatically when it denied membership, and it refused to issue the approval needed to close.
The buyer sued the association and sought to rescind the assignment; the assignees counterclaimed to enforce it, and the backup buyer sought a declaration that her contract had taken effect. The trial court ruled that the purchase contract was never terminated, that the assignment was valid and could not be rescinded, that the assignees could close, and that the backup contract never became effective. The opinion also notes that a jury separately returned a verdict for the buyer against the association; the appeal addressed the assignment, cost and fee rulings, not that verdict.
Why the Assignees Could Not Recover Attorney’s Fees
After winning on the rescission claims, the assignees asked the trial court for fees against the original buyer under the purchase contract’s prevailing-party clause, which allowed the prevailing party in litigation permitted by the contract to recover fees from the non-prevailing party. They argued that the assignment incorporated the purchase contract and that the buyer remained liable after assigning it. The trial court agreed and entered a fee, cost and interest judgment totaling about $269,572.
The Fourth District reversed. It applied the settled rule that an assignee stands in the shoes of the assignor, taking the assignor’s rights and remaining subject to the defenses that could be raised against the assignor. Here, that meant the assignees stepped into the buyer’s position. The fee clause governed disputes between the contract’s buyer and its sellers, and the assignment did not place the assignees in the sellers’ shoes. With the buyer and the assignees both on the buyer’s side of the contract, the clause did not reach their dispute, and the assignment contained no fee provision of its own. The court concluded there was no contractual basis for the award.
Can a Buyer Assign a Real Estate Contract in Florida?
Often, yes, but the contract controls. Florida purchase contracts typically address assignment directly. The widely used Florida Realtors/Florida Bar forms, for example, let the parties choose whether the buyer may assign, whether an assigning buyer is released, or whether assignment is prohibited altogether. In a membership community, the governing documents add a second layer, because an assignee who cannot obtain approval may be no better positioned to close than the original buyer.
Rubin adds a third consideration. An assignment is its own agreement, and if it says nothing about attorney’s fees, the parties to it may not be able to borrow the fee clause from the underlying contract when they end up in court against each other. Attorney Sam Saad, who serves on the Naples Area Board of Realtors contract creation committee, advises that an assignment should be drafted as a complete agreement, addressing payment timing, the assignor’s continuing liability, what happens if association approval is withheld, and how disputes and fees will be handled.
What the Court Said About Rescinding an Assignment
The buyer’s attempt to unwind the assignment failed. The trial court found the assignment supported by consideration because the assignees’ payment was not due until closing, and it found no mutual mistake because uncertainty about association approval concerned a future event rather than an existing fact. The Fourth District affirmed. A buyer who assigns a contract to keep a deal alive should expect the assignment to be enforced as written, even if the deal later unravels for reasons outside the buyer’s control.
What Rubin Means for Backup Offers in Club Communities
The backup buyer in Rubin never reached the closing table. Because the trial court found the primary contract had not terminated, the backup contract’s condition was never triggered. The appellate court also affirmed the trial court’s refusal to tax the buyer’s costs against the backup buyer, holding that in a declaratory judgment action the trial court has discretion to award costs as are equitable.
For agents representing a backup buyer, the case shows how much depends on whether and when the primary contract actually terminates. When a denial, an assignment and a termination notice land within days, a backup buyer can wait through litigation with no certainty of closing. Clear termination language and a precise backup trigger reduce that risk.
How Rubin Applies in Naples, Bonita Springs and the Rest of Southwest Florida
Many gated golf and club communities across Collier and Lee counties require membership or purchase approval before closing, which makes the Rubin fact pattern familiar to local agents. Rubin is a Fourth District decision. Collier and Lee counties are in the Twentieth Judicial Circuit, whose appeals go to the Sixth District Court of Appeal, and the Sixth District has not addressed this fee question. Florida trial courts generally follow a decision from another district court of appeal when their own district has not ruled on the issue, but the Sixth District remains free to reach a different conclusion. Outcomes in any dispute will depend on the specific contract language, governing documents and facts.
Frequently Asked Questions
Can an assignee recover attorney’s fees from the buyer who assigned the contract?
Under Rubin v. Sailfish Point, not through a purchase contract fee clause that governs disputes between buyer and seller. The Fourth District held that an assignee steps into the buyer’s position, so that clause did not cover a dispute between the original buyer and the assignee. If the assignment itself contains a fee provision, the analysis may differ.
Can a buyer cancel an assignment if the association refuses to approve the assignee?
In Rubin, the buyer could not. The courts upheld findings that the assignment had consideration even though payment was due at closing and that there was no mutual mistake, because association approval was a future event. Whether a different assignment can be undone depends on its terms and the facts.
Does Rubin v. Sailfish Point apply in Collier and Lee counties?
It is a Fourth District decision, and the Sixth District Court of Appeal, which covers Collier and Lee counties, has not ruled on the issue. Florida trial courts generally follow another district’s decision when their own district has not addressed the question, but the Sixth District could decide differently.
Is the Rubin decision final?
The opinion was issued on October 7, 2026 and states that it is not final until the disposition of any timely motion for rehearing. Its status should be confirmed before relying on it.