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Kayser v. Agiman

BER-C-288-04 (N.J. Super. Ch. Div. 2005) (Unpublished)

CONTRACTS; ENFORCEMENT—A seller compelled to transfer its property by a court order can not expect that, after finally allowing the sale to take place, it can get the court to rescind the sale.

Sellers contracted to sell their condominium. After the sellers failed to appear at the scheduled closing, the buyers filed a complaint and an order to show cause to restrain the sellers from conveying the condominium to another buyer and to force them to complete the sale. Thereafter, the buyers filed a summary judgment motion. The sellers provided no opposition and, the lower court permanently enjoined the sellers from transferring title to the premises, and directed that the sellers transfer title to the buyers within seven days of the date of the order.

Thereafter, the court appointed an attorney-in-fact for the sellers with the authority to sign closing documents. The property was transferred to the buyers, but the sellers and their belongings remained inside. The sellers’ attorney then told the court that he never received the order seeking an appointment of an attorney and asked the lower court to postpone the closing. A warrant of removal was issued by the lower court, but the buyers agreed to have it vacated it so that the sellers’ appeal could be considered. On appeal, the sellers asked the Court to set aside the prior order of summary judgment, to vacate the appointment of an attorney-in-fact, and to rescind the sale of their condominium.

The Appellate Division held that in order to receive relief, a seeker must show that his circumstances are exceptional and that the enforcement of the order would be unjust, oppressive or inequitable. The sellers argued that they had been experiencing psychological and emotional trauma stemming from a family tragedy. They also defended on the grounds that: 1) the buyers failed to satisfy the home inspection contingency; 2) the parties failed to agree to a use and occupancy agreement; and 3) there were defects in the time of the essence notice sent by the buyers (which mistakenly referenced the buyers as sellers, and vice versa.) The Court held that the sellers failed to: 1) establish the requisite showing to permit relief; 2) demonstrate either excusable neglect or a meritorious defense; and 3) prove that its case was one of the exceptional cases warranting relief pursuant to New Jersey statute. Instead, the Court found that the sellers allowed the case to proceed and that the closing had already taken place. Therefore, it held that the sellers’ “equivocation and failure to attend to the matters at hand [had] caused them the difficulties” that they faced. The Court denied the sellers’ call for relief and issued a warrant for removal to allow the sellers a reasonable opportunity to arrange for the removal of their belongings.


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