Background
In late September 2021, J&C Properties, LLC (buyer) and Rayster Realty, LLC (seller) executed a purchase and sale agreement for a twelve-unit apartment complex in Manchester, New Hampshire, at a price of $1.3 million, with closing set for on or before November 30, 2021. The agreement included a financing contingency requiring the buyer to deliver a written financing commitment by November 26, 2021. If the buyer missed that deadline, the seller could either declare the buyer in default or treat the financing contingency as waived by the buyer.
The buyer’s bank conditionally approved a loan in late October but warned that the required appraisal would be delayed. On November 2, the buyer’s co-owner informed the seller’s co-owner by phone that financing was conditionally approved but an appraisal delay was expected; the seller’s co-owner purportedly indicated he was “fine with” the delay. The buyer did not deliver a written financing commitment by November 26. Despite this, the seller’s principals exchanged emails and met with the buyer in late November to schedule a December closing. On December 3, however, the seller abruptly terminated the agreement, with one co-owner later emailing the buyer that “I do not want to sell.”
The buyer sued for specific performance. After a jury trial in Superior Court, the jury found that the buyer did not materially breach the agreement, that the parties had agreed to extend the closing date, and that the seller materially breached. The trial court awarded specific performance, ordering the parties to close within thirty days. The seller appealed, challenging the denial of its motion for partial summary judgment, the admission of oral communications, and the award of specific performance.
The Court’s Holding
The New Hampshire Supreme Court affirmed on all three issues. On summary judgment, the court held that the seller’s own emails in late November — sent after the buyer missed the financing deadline — discussing closing preparations gave rise to a genuine dispute of material fact about whether the seller had elected to treat the financing contingency as waived rather than declaring the buyer in default. That factual dispute precluded summary judgment in the seller’s favor.
On the statute of frauds, the court held that testimony about the November 2 phone call was properly admitted under the part performance doctrine: the buyer had acted in reliance on the oral extension by continuing to pursue the appraisal and work toward closing, making enforcement of the oral extension a legal equivalent of compliance with the written deadline. As for the seller’s late-November oral communications about scheduling a December closing, the court held these were not a contract modification at all — they were evidence of the seller’s unilateral decision, expressly contemplated by the contract’s own terms, to treat the financing contingency as waived. Because the statute of frauds bars oral modifications, not unilateral conduct already authorized by the written contract, no writing was required.
On specific performance, the court declined the seller’s invitation to abandon New Hampshire’s well-established presumption that specific performance is the appropriate remedy for breach of a land sale contract. The court rejected the argument that investor-buyers who lack a “particular liking” for the land should be limited to monetary damages, reasoning that altering the longstanding presumption would unsettle foundational real estate practice and frustrate parties’ reasonable contractual expectations.
Key Takeaways
- A seller who continues to engage in closing preparations after a buyer misses a contractual financing deadline may create a triable issue of fact as to whether the seller elected to treat the contingency as waived — foreclosing summary judgment on a default theory.
- Under New Hampshire’s part performance doctrine, a buyer’s continued pursuit of financing and closing arrangements in reliance on an oral extension can render that extension enforceable even where the statute of frauds would otherwise require a writing.
- Conduct authorized by the written contract itself — such as a seller unilaterally treating a contingency as waived per the contract’s express terms — does not constitute a “modification” subject to the statute of frauds.
- New Hampshire reaffirms its presumption that specific performance is the appropriate remedy for a seller’s breach of a real estate purchase and sale agreement, and declines to create an exception for commercial or investment buyers.
Why It Matters
This decision reinforces that sellers in New Hampshire cannot quietly continue closing preparations after a buyer misses a contractual deadline and then pivot to a default declaration when the deal becomes unfavorable. The court’s analysis of how a contract’s own waiver-election mechanism differs from a modification subject to the statute of frauds offers important guidance for drafting and litigating real estate contingency clauses.
The court’s firm refusal to carve out an exception to specific performance for investor-purchasers preserves a bedrock assumption of New Hampshire real estate practice. Sellers and their counsel should understand that walking away from a signed purchase agreement — particularly for reasons of price regret, as the trial court found here — carries the risk of a court-ordered closing, not merely a damages award.