Can I get my deposit back? (Seller can't close)

[Eric Lin]

Asking for a friend...

A friend of mine is under contract to purchase a (new construction) property. The down payment is 40,000. They were scheduled to close August 31st, but the seller has been unable to get a permit from the city that allows residents to move in. There's no end in sight, and my friend would now like to pursue other options. Part of the reason is that she's paying 4k+/month in rent, which seems very unfair. She has to pay month by month because the seller can't get this permit. Can she get her deposit back? Her real estate agent says no, but of course it's in the best interest of the real estate agent for her to go through with the purchase. 

Thanks!