Anticipatory Breach in Real Estate Contracts: When Is a Party in Breach Before Performance is Due?

Olivia Stoutamire, Summer Associate 2026, and Scott Cookson Real Estate Partner, wrote this blog.

In the real estate world, deals do not always proceed according to schedule. Financing issues, development delays, and changing market conditions can all affect a party’s ability to perform its contractual obligations. However, when one party indicates that it may not be able to perform by the contractual deadline, an important legal question arises: has that party merely requested a modification of the agreement, or has it committed an anticipatory breach of contract?

What is Anticipatory Breach?

Most contract disputes arise after a party fails to fulfill its obligations when performance becomes due. In some situations, however, a party may be considered in breach before the deadline for performance even arises. This concept is known as anticipatory breach, or anticipatory repudiation. The alleged breach may take many forms and could involve any material contractual duty, including a buyer’s obligation to post a required deposit or close on the property, or a seller’s obligation to complete development obligations or cure title defects necessary to convey marketable title. 

Once anticipatory breach occurs, the non-breaching party may be entitled to immediately terminate the contract and pursue available remedies, (which may include damages, specific performance, liquidated damages, retention of deposits, and other contractual remedies), without waiting for the contractual deadline or closing date to pass.

The “Distinct, Unequivocal, and Absolute” Refusal to Perform

Under Florida law, anticipatory breach occurs when, before the time for performance is due, one party refuses to perform its future contractual obligations. Florida courts have explained that the alleged breach must be “distinct, unequivocal, and absolute.”             

One of the most common issues in anticipatory breach disputes is determining whether a party actually refused to perform or merely expressed uncertainty regarding future performance. Florida courts have consistently held that the refusing party’s words or conduct must clearly demonstrate that it will not perform its contractual obligations when the time for performance arrives. Anticipatory breach exists when a party indicates an intent to abandon the contract or puts themselves in a position that would make it impossible to comply with one or more of the contractual terms. Ambiguous expressions of concern or uncertainty are insufficient. A statement expressing concern about the ability to perform, requesting additional time, or seeking to renegotiate certain contractual terms does not rise to the level of anticipatory breach, because it is not a distinct, unequivocal, and absolute refusal to perform. 

Because anticipatory breach disputes often turn on the non-performing party’s language, the exact wording of emails, letters, text messages, and conversations can become critically important in the analysis.

The Importance of Being Ready, Willing, and Able to Perform

The Florida Supreme Court has emphasized that a party cannot recover for anticipatory breach if that party itself was unable or unwilling to fulfill its own obligations under the contract. This means that a party asserting anticipatory breach must still be prepared to perform its contractual duties, even if the other party has indicated that it will not do so. For example, a seller alleging anticipatory breach by a buyer still needs to demonstrate its ability to timely complete development obligations, convey marketable title, or timely close. Likewise, a buyer asserting anticipatory breach may need to demonstrate its ability to timely post required deposits or secure financing.

The purpose of this requirement is to ensure that one party cannot benefit from the other’s anticipatory breach if it was planning to breach the contract itself. Accordingly, before asserting an anticipatory breach claim, parties should carefully evaluate whether they are capable of performing their own obligations under the contract.

Whether you are a buyer, seller, developer, or investor, understanding your rights when a contract begins to unravel is essential. Anticipatory breach claims often require careful analysis of both the contract and the parties’ communications. Attorneys at Shuffield, Lowman, & Wilson, P.A. regularly advise clients on real estate transactions and contract disputes and can help evaluate potential claims and remedies. If you want to learn more about anticipatory breach or discuss a real estate contract dispute, contact one of our real estate attorneys.