Background
Glenn and Gian Angiolillo contracted to buy two Greenwich properties from Barrett Nevard in transactions requiring simultaneous closings. The seller had represented that both properties were three-family dwellings, but the town identified 23 Henry Street as a two-family dwelling. The buyers paid a $132,000 deposit.
The contracts allowed Nevard up to thirty days to cure a title defect and then gave the buyers the choice to accept the title he could convey or reject it and receive their deposit back. Nevard pursued and proposed alternatives, including price reductions and possible regulatory approval, but the buyers rejected or did not accept those proposals. They sued on January 15, 2019, initially seeking specific performance only for the other property; Nevard returned the deposit and treated the contracts as terminated the next day.
The Court’s Holding
The Appellate Court affirmed judgment for the defendants on the buyers’ claims and on the defendants’ request for a declaration that the contracts were terminated. It held that the contracts unambiguously made January 16, 2019, the extended closing deadline after Nevard invoked the thirty-day title-curing extension; the buyers did not receive an additional twenty-one days after that date to close.
The court agreed that the trial court erred in ruling that time was of the essence for the closing, because the controlling seller’s rider expressly excluded the closing date from that designation. But the error did not require reversal. The contracts did not prescribe a particular method for the buyers’ election to accept or reject defective title, and the record adequately supported the finding that their conduct—including filing suit while not seeking to purchase both properties with the defect—amounted to an implied election to cancel.
Key Takeaways
- A seller’s contractual title-curing extension can set the operative extended closing deadline without adding a further general extension period.
- A contract may permit an implied election where it does not require a particular form of notice or election.
- An erroneous time-is-of-the-essence ruling is harmless when the judgment independently rests on supported contractual and factual grounds.
Why It Matters
The decision underscores the importance of reading real estate contracts and riders together, particularly where a rider controls conflicting terms. It also shows that a buyer’s litigation posture and conduct can supply evidence of a contractual election when a title defect cannot be cured and the contract provides only acceptance or cancellation as remedies.