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Scott E. Mollen Scott E. Mollen

Contracts—Purchaser Failed To Close on “Time of the Essence” Date—Although Seller Agreed To Meet and Did Meet With Purchaser the Day Following the Closing Date, Purchaser’s Estoppel Claim Was Barred by the Contract’s No Waiver or Modification Provision—Purchaser Claimed It Would Have Obtained an Extension by Filing for Bankruptcy Had it Not Been for the Seller’s Agreement To Meet To Discuss an Extension

A purchaser of real property sought a declaratory judgment that the seller was estopped from enforcing the default provision of a purchase agreement (contract) and the purchaser was entitled to additional time to close on the purchase. The seller counterclaimed, seeking a declaratory judgment that it had properly terminated the contract and therefore was entitled to retain the down payment, plus recover attorney fees and costs. The seller had moved for summary judgment on its counterclaims.

The seller and a purchaser entered into the contract on Feb. 8, 2019 for the purchase/sale of real property, for a price of $12.5 million. The purchaser made a down payment of $937,500. The contract specified that the closing would take place on May 6, 2019, “no later than 6:00 p.m., with time being of the essence….” The contract provided that if the purchaser defaulted, the seller could terminate the contract and “retain the down payment as liquidated damages.” The contract also stated that it “may not be modified, changed, supplemented or terminated, nor may any obligations hereunder be waived, except by written instrument signed by the party to be charged or by its agent duly authorized in writing….”

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