The lawsuit is one more symptom of a softening housing market. The median price of an existing condo in Lee County has fallen 38 percent from February 2006, at $353,900, the highest on record, to $218,800 in August 2007, the last month available, according to the Florida Association of Realtors. For single-family homes, the price has fallen 22 percent from the all-time high of $322,300 in December 2005 to $250,800 in August 2007.
Builders in Southwest Florida are seeing such challenges more and more, said Christopher Shields, a real estate attorney with the Pavese law firm in Fort Myers.
"Potential purchasers are trying to get out of their contracts," he said. "Typically in a rising market, it doesn't matter whether or not a developer has committed violations at all, the buyer goes ahead and closes because he thinks the property is going to be worth more next year."
Now that prices are soft, however, "They look for reasons where perhaps the developer is in violation of federal and state disclosure requirements."
Some recent examples of similar suits by both buyers and builders trying to make the best of contracts signed in better times:
• A federal class action lawsuit brought by people who bought houses from First Home Builders alleges that they were defrauded by the developer and real estate brokerage D'Alessandro & Woodyard in a program to sell homes as an investment with a guaranteed rate of return.
• Advantage Builders of America in March sued 13 people for more than $15,000 in damages and attorneys' fees because they entered into contracts to buy houses in Lehigh Acres and Cape Coral but didn't make payments.
• The builders of Sail Harbour in February asked the court to force 29 people to close on their deals in the south Fort Myers development.
The suit against WCI was filed in federal court by David Berry and John Schrenkel, who signed up to buy Unit 1202 in the Florencia building at The Colony Golf & Bay Club in Estero.
They say WCI ran afoul of the Interstate Land Sale Act, which regulates the sale or lease of land from developers.
In this case, WCI violated the act by neglecting to include a provision in the contract giving a buyer 20 days to make things right after being notified that he's in default of the contract, said Miami-based attorney Robert Cooper, who filed the suit.
That means, he said, that "if some purchaser accidentally fails to do x, y or z, the builder can't just take the deposit."
In this case, Schrenkel and Berry want out of the contract and their $115,000 deposit returned.
But WCI attorney Thomas Roehn told Cooper in a July 2 letter that it's all just a misunderstanding. "Inadvertently, the 20 days notice of default and opportunity to cure was provided to the seller rather than the purchaser."
That means the buyers aren't entitled to their money back, the letter says. "WCI looks forward to Mr. Schrenkel and Mr. Berry closing upon their purchase of Unit 1202 at Florencia."
Cooper filed the case anyway, seeking damages for his clients and any other Florencia buyer in the same situation.
He said this is the first case he's seen in which the 20-day default protection for the buyer was left out. "I have not seen other developers screw this provision up."
If successful, the suit would be the latest bad news for WCI, which reported a $33 million loss for the quarter ending June 30 as condo tower sales all but dried up and traditional home sales were sluggish.
On Aug. 30, billionaire investor Carl Icahn gained influence on the company's board as he, two close associates, three incumbents and three jointly nominated members were elected to the board.