Many times in real estate transactions, we have had the situation where a Seller cannot sell or a Buyer cannot buy on the contract closing date. And all involved in the transaction have been asked the same question by our upset client. "What good is a contract if they don't have to close on that date?"

The law of contracts involves statutory authority, laws written to cover situations and case law, the history of decisions by judges and juries over the years. This body of law taken together must be reviewed when we are trying to come up with answers to questions such as these. In the situation involving time for performance, both case law and statutory law, play a part in the analysis.

Contract law is clear, in that the plain language of a contract, when unambiguous and clear determines the rights of the parties, as to that issue. This would seem to suggest that the date stated is the date that dictates. Case law, however has evolved over the years in such a way that dates in contracts are to be interpreted to infer a reasonable period of time for performance. This is true unless specific language is included. This language is, "Time is of the essence". Clients, when they hear that they could have included this language sometimes feel as if it should have been added to their contract, as well. We often have to explain to them that this verbiage is a double-edged sword. As we explain to the buyer, if they were on their way to the closing, and had an accident and could not close, time is of the essence, would allow the Seller to sell to someone else. It does not differentiate between good reasons and bad reasons, to delay closings. The same analysis could apply to Sellers.

The bottom line is that Realtors and Attorneys cannot make Buyers buy or Sellers sell, and as long as there are closings, there will be delays, and clients unhappy about them. We use a rule of thumb that seems to have been tacitly adopted by our Courts. The period that is generally considered reasonable is thirty (30) days. Even with this rule of thumb, there may be situations where a party cannot close within this "reasonable" time. In those circumstances, if the parties cannot agree on a remedy, litigation is likely to result. If you have any further questions about this or other subjects, please feel free to contact our office. 

THE NEW OWNERS TITLE INSURANCE POLICY

Owner's title insurance has been offered to homebuyers for as long as most of us have been involved in real estate. The standard coverage insured the owner against loss arising from any defect in the title which predated the title policy, whether or not fault could be proved, or the applicable statute of limitations had run against that attorney. The policy also insured against matters, not discoverable in the land records, by an adequate search, such as forgeries, missing heirs, mis-indexed documents, mistakes in recording by the town clerks, Indian Claims, and lack of capacity of the seller of property. In addition, the policy's exceptions showed the owner the status of the title, and included all matters found in the attorney's title search.

Recently, title companies have expanded the benefits of Owners Title Insurance through extended benefits coverage. This coverage is now offered as a default policy by our law firm, and contains coverage for many additional, and in some respects, non-title issues. The cost of this expanded protection is only ten (10%) percent of the total cost of the owners' policy.

The policy protection offered includes post-policy forgeries, post-policy encroachments by others, prior building permit violations, violations of restrictive covenants, post policy adverse possession claims by others, and enhanced access provisions. These policies also insure the use of the property as a residence if a dwelling exists on the property, appreciates in coverage at the rate of ten (10%) percent per year for five (5) years, and provides for rent for a reasonably equivalent substitute, in the event a property cannot be used as a residence because of a covered claim.

If you have any questions regarding the content of this article, please feel free to contact us by phone or email at Realestate@Peck-Tuneski.com.