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Making the Case for ‘Time Is of the Essence’ Closings
As the authors noted in our first article on Time of the Essence (TOE) Closings, “real estate closings may be the most basic and common real estate experience, but the familiarity ends once a provision of the contract of sale has been breached.” See, Bailey and Desiderio, “Enforcing the Contract—Obtaining Down Payment or Specific Performance” (New York Law Journal, March 8, 2006). This is because the circumstances attending each purchaser’s or seller’s failure to close on the TOE closing date is always unique, and this has resulted in an innumerable variety of judicial decisions applied to ever-changing real estate scenarios.
Nevertheless, nearly 20 years later, despite ever-changing circumstances, the rules that govern TOE closings remain essentially the same. “[W]hen a party to a real estate contract declares time to be of the essence in setting a closing date, each party must tender performance on that date, and a failure to perform constitutes a default.” Donerail Corporation v. 405 Park LLC, 100 AD3d 131, 137 (1st Dept. 2012). (Emphasis added).
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