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Scott E. Mollen Scott E. Mollen

Contracts—Condominium Sponsor Granted Summary Judgment on Breach of Contract Claim Arising from Buyer’s Failure To Close—Sponsor’s Prediction as to When Temporary Certificate of Occupancy Would be Issued Was Not a Misrepresentation of Existing Fact, But Only an Expression of Future Expectations

This action for breach of contract, legal fees and costs arose out of an “unconsummated sale of a condominium….” The plaintiff condominium sponsor (sponsor) and the defendant buyer (buyer) had entered into an “option agreement” (contract) for the sale of a condominium unit (unit). The contract was dated June 30, 2015. At the time of contract, the unit and the rest of the building were still under construction. The purchase price was $7,450,000.00. The buyer had made a deposit of $1,490,000.00. The contract incorporated the condominium offering plan (plan). The plan stated that if the buyer failed to close, he would forfeit the down payment as liquidated damages.

The plan provided that if the buyer defaulted under the contract, “time being of the essence with regard to the obligations of purchaser thereunder,” the sponsor may cancel the contract. If the sponsor cancelled the contract, the buyer would have 30 days to cure the specified default. If the default was not cured within 30 days, “TIME BEING OF THE ESSENCE,” then the contract would be deemed cancelled and the sponsor could retain the down payment as liquidated damages, plus interest and “Unit Upgrade Funds.” If the buyer defaulted, the sponsor could sell the apartment “without any obligation to account to (the buyer) for any of the proceeds from such sale.”

The plan provided that no closing would occur before the issuance of a temporary certificate of occupancy (TCO). The buyer was obligated to close title once the TCO was issued “irrespective of outstanding items of work, provided Sponsor has satisfied the closing conditions set forth in the Section of the plan entitled ‘Terms of Sale.’”

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