Cooperatives & Condominiums

AppDiv, First Dept

(memorandum opinion)

In condominium purchaser's action against seller for return of a down payment, seller appealed from Supreme Court's award of summary judgment to purchaser. The Appellate Division affirmed, holding that seller's failure to deliver to purchaser statements from the condominium board asserting that all common charges were current constituted breach of the sale contract and entitled purchaser to return of the down payment.

The sale contract provided that seller would deliver title subject to exceptions as the title insurer was willing 'without special or additional premium, to omit as exceptions to coverage.' The title report included two exceptions ' one was for seller's failure to deliver a waiver of a right of first refusal from the condominium, and the second was seller's failure to deliver a statement that common charges were current to the date of the closing. Because the title insurer was not willing to omit these exceptions, purchaser's lender refused to issue the required checks at closing. Purchaser then brought this action for return of the down payment.

In affirming Supreme Court's grant of summary judgment to purchaser, the Appellate Division noted that the condominium board had refused to give seller either of the documents because the board was concerned about purchaser's financial ability to pay common charges. As a result, the board indicated that it would not provide the documents unless purchaser paid two years of common charges in advance. The court noted, however, that the condominium board had no legal right to reject the buyer. Moreover, the board had no right to demand, and the purchaser had no obligation to pay, advance common charges. Because the sale contract required seller to deliver the required documents from the condominium board, seller's failure to deliver those documents rendered title uninsurable, and constituted a default by the seller. As a result, buyer was entitled to return of the down payment.

Seller's Failure to Deliver Statement from Condo Board Constitutes Breach Of Contract

Lisenenkov v. Kaszirer

NYLJ 6/25/07, p. 34, col. 2

AppDiv, First Dept

(memorandum opinion)

In condominium purchaser's action against seller for return of a down payment, seller appealed from Supreme Court's award of summary judgment to purchaser. The Appellate Division affirmed, holding that seller's failure to deliver to purchaser statements from the condominium board asserting that all common charges were current constituted breach of the sale contract and entitled purchaser to return of the down payment.

The sale contract provided that seller would deliver title subject to exceptions as the title insurer was willing 'without special or additional premium, to omit as exceptions to coverage.' The title report included two exceptions ' one was for seller's failure to deliver a waiver of a right of first refusal from the condominium, and the second was seller's failure to deliver a statement that common charges were current to the date of the closing. Because the title insurer was not willing to omit these exceptions, purchaser's lender refused to issue the required checks at closing. Purchaser then brought this action for return of the down payment.

In affirming Supreme Court's grant of summary judgment to purchaser, the Appellate Division noted that the condominium board had refused to give seller either of the documents because the board was concerned about purchaser's financial ability to pay common charges. As a result, the board indicated that it would not provide the documents unless purchaser paid two years of common charges in advance. The court noted, however, that the condominium board had no legal right to reject the buyer. Moreover, the board had no right to demand, and the purchaser had no obligation to pay, advance common charges. Because the sale contract required seller to deliver the required documents from the condominium board, seller's failure to deliver those documents rendered title uninsurable, and constituted a default by the seller. As a result, buyer was entitled to return of the down payment.