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Real Property Law
Sellers Excused from Performance Southold Realty, LLC v. Fraser NYLJ 5/12/17, p. 21, col. 5 AppDiv, Second Dept. (memorandum opinion)
In purchaser's action for specific performance of a contract to sell real property, purchaser appealed from Supreme Court's grant of sellers' summary judgment motion. The Appellate Division affirmed, holding that sellers were excused from performance because sellers had made a good faith, but unsuccessful, effort to obtain insurable title.
Sellers, an estate and an individual, owned the subject property as tenants in common, and contracted to sell the property to purchaser. The sale contract entitled the seller to return purchaser's down payment, and to avoid any further liability if the reasonably estimated costs to comply with violations or liens which seller is required to remove shall exceed $23,500. The Internal Revenue Service (IRS) imposed a lien for $6 million in estate taxes against the property. The title company listed the lien as an exception to its coverage, and purchaser demanded that sellers remove the lien. When the estate failed to obtain a release, sellers advised purchaser that they were cancelling the contract and returning the deposit. Purchaser then brought this action for specific performance, and Supreme Court awarded summary judgment to sellers.
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