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Musto v. Cipriani

A-6133-02T3 (N.J. Super. App. Div. 2004) (Unpublished)

CONTRACTS; SPECIFIC PERFORMANCE; TIME OF THE ESSENCE — To get specific performance from a seller based on a time of the essence request, the request need only be sent to the seller’s attorney or the seller, not both.

A condominium buyer sued its seller for specific performance. The parties had entered into an agreement making the sale contingent upon the seller entering into a sales contract to purchase a new home by a certain date. The seller did not terminate the contract by the stated deadline and the buyer sent a “Time of the Essence” notice to the seller’s attorney, but not sent to the seller. The seller did not appear at the scheduled closing and the buyer sued, seeking specific performance because the seller failed to appear at the closing after receipt of the “Time of the Essence” notice. In response, the seller contended that it was not required to close until it entered into a contract for a new home. The seller also argued that it was not obligated to attend the closing because the “Time of the Essence” notice was not sent to it, personally, as required. The lower court held that the seller had breached the contract and ordered the seller to specifically perform the sales contract. It also awarded attorneys’ fees to the buyer, but later vacated the fee award on a motion for reconsideration by the seller. The seller appealed the lower court’s ruling regarding specific performance.

The Appellate Division affirmed, rejecting the seller’s argument that it should have personally received the “Time of the Essence” notice. The seller also contended that the buyer failed to demonstrate that it, the buyer, was ready, willing, and able to close on the scheduled closing date. The Court ruled that a “Time of the Essence” notification needs only to be sent to the seller or its attorney, not both. The Court also held that there was sufficient credible evidence for the lower court to conclude that the buyer was ready, willing, and able to close on the date of the closing and also that the buyer did not need to be in actual possession of its mortgage proceeds to close on the scheduled date.


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