Not unless the Agreement of Purchase and Sale specifically indicates that the deposit is non-refundable and may be irrevocably paid to you on termination. However, this treatment of the deposit would be unusual in a residential transaction. Typically, the deposit would remain with the deposit holder (realtor or solicitor) pending a court order or mutual release signed by both parties. The Seller would have to mitigate his or her damages by attempting to resell the property as soon as possible and limit the losses and carrying charges that he or she sustains. If the Seller actually makes more money on the resale and there are no damages after tallying up all of the carrying costs, the Seller would not be successful in a court action to retain the deposit. The Seller cannot profit from the Buyer’s default. His or her entitlement would be to be made whole again, considering all of the costs sustained. If there is a shortfall, a Court Order may be sought for a judgment against the Buyer for breach of the Agreement of Purchase and Sale, whereby the release of the deposit may be applied towards the satisfaction of the judgment. The Seller would first have to prove that the Buyer defaulted under the terms of the Agreement of Purchase and Sale. If the deal is conditional in the Buyer’s sole discretion (for financing or a building inspection for example) and the Buyer does not waive the condition, the Buyer would not have defaulted and would be entitled to the return of the deposit.