Quick Summary
- A Florida appellate court ruled in January 2026 that a broker who presented seven full-price offers — all rejected by the seller — was still entitled to a full commission.
- Separate, unsigned “instructions to agent” documents are not part of a listing agreement unless they are signed, reference the agreement, and include consideration — a distinction that took nine years of litigation to resolve.
- Listing agents can protect their commission by keeping all seller requirements inside the signed listing agreement, documenting rejection reasons in real time, and never accepting verbal or unsigned modifications.
A Florida appellate court recently answered a question every listing agent has faced at some point: does a broker still earn a commission when the seller rejects a qualified offer? In Carmona Realty Group, LLC v. Fernandez, the Third District Court of Appeals said yes — and the reasoning behind that decision offers a practical roadmap for protecting your commission on every listing you take.
The Facts: Eight Offers, Zero Acceptances
Carmona Realty Group represented seller Diana Fernandez under a standard Florida listing agreement signed in June 2017, covering a Miami property listed at $499,500 with a 5% commission. The agreement included a merger clause — standard in NABOR and Florida Realtors forms — stating that the listing agreement was the entire agreement between the parties and that any modification had to be in a signed, written addendum.
Separately, the seller gave the listing agent a document titled “Instructions to Agent.” This document was signed only by the seller — never by the broker — and contained additional terms, including a minimum deposit requirement. It did not reference the listing agreement, and the listing agreement did not reference it.
Over the course of the listing, Carmona Realty presented eight offers, including four at full price and one above list at $505,000. The seller rejected every one of them, citing a desire to raise the price. At the time of each rejection, the seller raised no other objections — no mention of shutters, open permits, deposit amounts, or furniture. Those objections appeared for the first time during litigation, specifically in deposition testimony, well after the broker had sued for the unpaid commission.
How the Trial Court Got It Wrong
The trial court treated the seller’s separate “Instructions to Agent” as part of the listing agreement and concluded that none of the offers met those additional terms. On that basis, the seller was found justified in rejecting the offers, and the broker was denied commission. Carmona Realty appealed.
Why the Appellate Court Reversed
The Third District Court of Appeals reversed, and the reasoning matters for every agent who has ever received side instructions from a seller that were never folded into the official paperwork.
The court identified several defects in the seller’s “Instructions to Agent” document. First, it lacked consideration — there was no exchange of value tied to the additional terms. The seller did not lower the commission or offer anything else in return for the agent’s compliance with the extra requirements. Second, the document was not signed by the broker, which matters under Florida’s statute of frauds, the same legal principle most agents associate with real property transfers but which also governs certain contract modifications. Third, the documents did not cross-reference each other. There was no language in the listing agreement pointing to the instructions, and no language in the instructions pointing back to the listing agreement — the kind of cross-reference courts look for when determining whether separate documents should be merged into a single agreement.
The court also found that the seller’s objections regarding shutters, permits, deposits, and furniture were untimely and invalid. They were raised for the first time during litigation, not during the actual listing period when the offers were live. And critically, the court found that the broker had produced multiple ready, willing, and able buyers — the legal standard that triggers a broker’s right to commission regardless of whether a sale ultimately closes.
Procuring Cause: A Principle Dating to 1921
The legal foundation for the court’s decision is not new. Florida has long recognized that when a broker procures a customer who is ready, willing, and able to purchase property on the terms offered, and the transaction is defeated by some fault of the seller, the broker is entitled to the commission even if the sale never closes. This principle traces back to Hutchins v. Sherman, a 1921 Florida case — meaning the court in Carmona was not creating new law. It was applying a rule that has protected Florida brokers for over a century.
The appellate court also addressed when separate documents can be merged into a single agreement. Two instruments signed by the same parties, concerning the same subject matter, and signed at or near the same time can sometimes be treated as one agreement — but only if they meet a specific set of tests, including mutual signatures and at least some cross-reference between the documents. The seller’s instructions met none of these tests. The broker never signed them, and the listing agreement’s own merger and integration clause foreclosed any argument that an unsigned side document could modify its terms.
Ultimately, the appellate court held that the listing agreement controlled, that the seller breached it by refusing qualified offers, and that the broker was entitled to commission on the highest rejected offer — $25,250. The case was reversed and remanded to the trial court for an award of commission, fees, and costs.
The Real Cost: Nine Years Over $25,250
The broker won, but the win came at a steep price. By the time the appellate decision was issued in January 2026, the case had been in litigation for nine years — and it is still not fully resolved. The matter must now return to the trial court for a new hearing, the appellate record must be transferred back, fees must be litigated, and the commission must actually be collected. After nearly a decade, locating the seller and her assets to satisfy the judgment is its own challenge. A dispute over $25,250 turned into what may ultimately be a ten-year ordeal. That cost — in time, legal fees, and uncertainty — is the strongest argument for getting the listing agreement right from the start.
Practical Takeaways for Florida Listing Agents
The lessons from Carmona are directly applicable to listings you are working right now. Your listing agreement is your protection, and it functions as that protection only when it is complete — every blank filled in, every term the seller wants to impose actually written into the document or a signed addendum, not handed to you on a separate, unsigned sheet of paper.
If a seller has additional requirements about how offers should be presented — a minimum deposit, a price floor, financing contingency restrictions, required forms, closing timelines — those requirements need to be in writing, signed by both parties, either in the listing agreement itself or in a properly executed addendum. A separate document that only the seller signs, with no reference back to the listing agreement, creates exactly the kind of ambiguity that drove this case through nearly a decade of litigation.
Avoid drafting seller instructions yourself, and be cautious about discussing terms with a seller that fall outside the listing agreement. In Carmona, part of the problematic instructions document had actually been drafted by the broker’s own side — a detail that did not help their position. If a seller mentions a requirement that is not yet in writing, the safest response is to get it into a signed addendum immediately, not to informally agree to honor it.
Document a seller’s stated reason for rejecting an offer in real time. If a seller tells you over the phone that they are rejecting an offer because they do not want to remove the shutters, follow up in writing — an email, copied to your broker, acknowledging the stated reason and noting whether or not it is actually part of the listing agreement. This kind of contemporaneous documentation is exactly what was missing in Carmona, where the seller’s real objections did not surface until years later in deposition.
Walk every seller through the listing agreement at the time of signing — not just the listing price and the commission. Fernandez testified that she never read the agreement beyond those two figures and did not realize she had ongoing obligations to cooperate with qualified offers. A seller who understands upfront that bringing a ready, willing, and able buyer earns the broker’s commission — even if the sale does not close — is less likely to create a dispute later.
Frequently Asked Questions
Does a Florida real estate agent have to present oral offers?
No. Florida’s statute of frauds requires offers to be in writing. If a prospective buyer calls and states a verbal offer, the appropriate response is to ask them to put it in writing before it needs to be presented.
Can a seller’s instructions be communicated by email instead of a formal addendum?
It depends on the facts. If a seller sends an email stating a specific instruction and the agent replies agreeing to it, that exchange may itself constitute a written, signed modification to the listing agreement. The safer practice is to respond by stating that a formal addendum will be sent, which puts the parties in a clearer legal position than relying on an email exchange alone.
Texts generally do not hold up well in this context. Florida courts have looked unfavorably on text messages as a basis for contract modification, and many standard NABOR agreements specify that texting does not constitute official notice.
Does a broker earn a commission even if the sale never closes?
Yes, under Florida’s long-standing procuring cause doctrine. If a broker brings a ready, willing, and able buyer who meets the terms of the listing agreement, and the seller’s wrongful refusal prevents the sale, the broker has earned the commission regardless of whether the transaction ultimately closes. This principle dates to a 1921 Florida case and remains good law today.
Can a seller set a minimum offer price the agent does not have to present?
Yes, but it needs to be documented properly. Under Chapter 475 of the Florida Statutes, a listing agent is required to present all offers and counteroffers in a timely manner unless the seller has previously directed otherwise in writing. A price floor, restrictions on financing contingencies, required forms, or closing timeline requirements can all be valid instructions — but they must be in a signed writing, ideally as an addendum to the listing agreement, not a separate unsigned document.
Is an e-signature valid on a listing agreement or addendum in Florida?
Yes. E-signatures are valid under both Florida and federal law for almost all real estate documents, including listing agreements and addenda. The exception is for documents requiring in-person notarization or witness requirements, which carry their own separate execution rules.