Legal Question in Real Estate Law in New York

Time is of the essence and no financing contingency contract

I am currently under contract to buy a condominium apartment in Manhattan. I signed the contract and in it I waived financing, meaning my buying the apartment is not subject to my obtaining a mortgage. The owner of the apartment has cancelled our closing date, which was March 13th. We now have another date to close for April 15th. My attorney is trying to get a letter from the owners attorney (the seller) saying ''time is of the essence'' for the April 15th closing. My attorney tells me

that if the owner fails to close on April 15th I can get my 10% deposit back. Is this true and if not, what recourse do I have against the seller for failing to close? My attorney told me that the apartment she (the seller) is moving to is being held up in Surrogates Court with a gardianship issue.

What does that mean?

Any advice would be appreciated.

I am currently staying with a friend and I don't want this to end up being months!

Thank you

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Asked on 3/19/03, 3:07 pm

2 Answers from Attorneys
Arnold Nager Arnold H. Nager, Esquire

Re: Time is of the essence and no financing contingency contract

Yes, you are entitled to your 10 % down payment if the seller does not close within a reasonable period of time. If your contract has an "on or about" date as opposed to an "on or before" date specified, time is not of the essence.

In terms of the guardianship issues in Surrogate's Court ask your attorney.

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Answered on 3/19/03, 4:34 pm
Kenneth J. Ashman Ashman Law Offices, LLC

Re: Time is of the essence and no financing contingency contract

A potential alternative remedy to obtaining the return of your deposit, you may seek to enforce the contract and obtain "specific performance," i.e., forcing the seller to sell you the apartment.

-- Kenneth J. Ashman; www.AshmanLawOffices.com

This communication is intended for informational purposes only and is not intended to create an attorney-client relationship, which, under the policies of Ashman Law Offices, LLC, can only be created by execution of a formal retention agreement.

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Answered on 3/20/03, 1:41 pm


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