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Bemporad v. Fawcett

BER-C-353-04 (N.J. Super. Ch. Div. 2004) (Unpublished)

CONTRACTS; RIGHT OF FIRST REFUSAL; OPTIONS—An option that allows a party to “match the offer” means that the optionee must meet not just the price but also all other terms of the offer, included matching a specified closing date.

A couple sought to purchase a home. However, because of the couple’s poor credit, the wife’s parents agreed to take title in their names. The mortgage used to purchase the house had the parents as the mortgagors. When his wife filed for divorce, her husband asserted that the parents had always agreed that the house would belong to the couple regardless of title. He third-partied the parents with respect to the home’s ownership and he filed a lis pendens. The parties resolved their differences, and in exchange for the lis pendens being dismissed, the wife was to vacate the premises and her parents were to lend her $10,000. The property was to be sold. The divorce settlement agreement provided that the real estate agent could reduce the asking price in accordance with her best judgment, and that any offer made was to be communicated to all parties within twenty-four hours. It also provided that if the offer was accepted by two of the three parties (the wife, the husband, and the parents), the third party who was not willing to accept the offer would have ten days to match the offer, or the home would be sold to the buyer.

An offer was made, which the husband did not accept, and instead matched. However, the parents contended that this was not acceptable because the husband’s offer failed to match specifics of the buyer’s offer, specifically the speedy closing date. The only item the husband matched was the amount of the offer. The husband argued that there was no requirement that he match the closing date.

The Court held that an option that allows an optionee to “match the offer” means that the optionee must meet not just the price but also all other terms of the offer, including matching a specified closing date. Thus, the Court held that it was insufficient for the husband to indicate that he was willing to match the offering price, but not also willing to match the other terms of the offer. For that reason, the Court ordered the lis pendens filed by the husband to be discharged so that the closing with the unrelated buyer could take place.

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