By Victor Metsch
Whether it’s a $50 million dollar Manhattan building or a cousin’s beach bungalow, the problems are the same: financing fell through, the purchaser failed to bring the down-payment when he was supposed to, or the building tripled or halved in value between the signing date and the closing date of the contract.
When there is reason to fight over a real estate contract, “Time of the Essence” notices matter.
To the court, even in the hallowed formalist ground of real estate transactions, a contract to close on a certain date does not mean one must close on that date.
Unless the contract specifically says time is of the essence, the deal is binding even after the closing date.
But after that day goes by without a closing, either party can make time of the essence and create a “law date” that is a real last chance to close.
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This article was originally published in the New York law Journal.
by Victor M. Metsch
Anything that can possibly go wrong, does.
Compulsive readers of advance sheets and decisions reported by the Office of Court Administration are exposed, on practically a daily basis, to the truism that, in mortgage foreclosure proceedings, given the opportunity, something will almost always go wrong.
The often microscopic examination of procedural and substantive claims by the Courts appears to be a result of the unique and complicated technical requirements of the proceeding; the sometimes suspect papers trails resulting from bank failures, regulatory interventions and bulk assignments; and the inability of mortgagees-by-assignment to parlay the necessary original documents with an acceptable chain of title and an affiant with personal knowledge of the facts.
As a result, the Courts now regularly and routinely deny motions for summary judgment in mortgage foreclosure proceedings in situations that, in the past, would have sailed through the civil courts without particularly close scrutiny. A few recent examples follow: Continue reading →