Daily Development for Wednesday, January 25, 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

VENDOR/PURCHASER; SPECIFIC PERFORMANCE: Although normally a land contract purchaser is entitled to specific performance in the event of a seller breach, a court need not enforce a contract in a way that would advance injustice or cause hardship, so it need not order specific performance for the sale of a home where a resident seller has become seriously ill, and will leave the affected buyer with an action for damages. 

Kilarjian v. Vastola, 379 N.J. Super. 277, 877 A.2d 372 (N.J. Super. 2004); December 17, 2004. 

Homeowners entered into a contract for the sale of their property.  The closing date was scheduled for June 15, 2004.  On June 14, the seller's attorney wrote the buyer's attorney stating that the seller could not convey title.  On June 15, the buyers' attorney sent a time of the essence letter, setting a closing date of June 25.  The sellers were still unwilling to close.  The contract did not have a liquidated damages clause or any other guide in the event the seller chose not to close.  The buyers sued for specific performance.  They also sought to be paid damages for financing costs incurred because of the delay.

The sellers argued that they intended to move out of their home, but then the wife's spinal muscular atrophy began to accelerate.  They provided the court with a letter from their doctor, describing the illness, which had neither a cure nor an effective treatment.  The doctor explained that the wife had become profoundly disabled and required help with all daily activities.  The doctor also expressed concern that the proposed move would precipitate respiratory failure and could lead to the wife's death. That is why the sellers claimed that they could not fulfill the contract.  They argued that when they entered into the contract, the wife was able to care for herself and was able to walk with braces, but by the time of the suit, she was confined to her wheelchair or her bed.  The sellers also contended that the buyers were aware of the wife's deteriorating condition when the contract was signed and had ample time to find another home.  Furthermore, they argued that they should not

 be responsible for any increase in mortgage rates since they were in fact lower than the rates the buyers had originally committed to pay.

The Court first held that since the buyers had properly made time of the essence and closing did not take place by the date indicated, they may have been entitled to specific performance.  It pointed out, however, that a contract's enforcement must not advance injustice or hardship.  For that reason, the Court refused to evict the sellers because the wife's health had deteriorated so badly while the contract was pending, and they wished nothing more than to remain in her home during the most difficult days of her illness.  Accordingly, the Court found that the sellers would suffer great hardship if the contract was enforced, and specific performance was not the appropriate remedy in this case. 

Although the Court denied the buyers' claim for specific performance, it ordered the buyers to submit documentation as to the interest rates on a subsequent mortgage if in fact the buyers went out and bought another property financed at a higher rate so that the Court could award those costs accordingly.

Comment: In addition to the difference in interest rates, the buyers, of course, might have a claim if they had to pay more for an equivalent residence and other incidental costs. 

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