Justice Anil Singh

Plaintiff buyers moved for partial summary judgment on their claim for a return of their deposit in this breach of a residential real estate contract. The contract noted the buyers would not apply for financing in connection with the sale. Yet plaintiffs advised defendant they were applying for a loan to partially finance the purchase. However, the building’s board denied buyers approval of the transaction and they sought return of their deposit, but were refused. The seller demanded retention of the money as liquidated damages, claiming plaintiffs’ application for financing breached the contract. Plaintiffs argued that while defendant was on notice they were partially financing the purchase with a loan, defendant failed to notify them of the alleged breach, claiming she waived same. The court agreed with defendant that plaintiffs breached the contract by seeking financing, yet it was not up to defendant to determine that plaintiffs’ breach was incurable thereby denying them the opportunity to cure and prevent another breach. Thus, the seller’s failure to observe the contract’s requirements to notify buyers of the breach and allow them a cure period grants plaintiffs’ motion and a return of their deposit, costs and legal fees.