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Real Property Law
Buyer's Anticipatory Repudiation Results In Forfeiture of Down Payment
Hegeman Plaza, LLC v. Burgan, 2022 WL 2057801, AppDiv, Second Dept. (memorandum opinion)
In buyer's action for specific performance of a sale contract, buyer appealed from Supreme Court's grant of summary judgment to seller permitting seller to retain the down payment. The Appellate Division affirmed, holding that buyer's anticipatory repudiation entitled seller to retain the down payment.
Buyer contracted to buy from sellers in a transaction that was intended to be part of a 1031 exchange for the sellers. The buyer agreed to cooperate with the seller in completing that exchange. The contract also included a provision prohibiting assignment of the contract without the consent of the sellers. The day before closing, buyer sought to take title under a newly formed LLC, and sellers refused to consent. Buyer's lawyer informed sellers that if they did not consent to the assignment and change their documents, buyer would not cooperate with the sellers at closing. Sellers then cancelled the contract and buyer brought this action for specific performance. Sellers counterclaimed to retain the down payment, and Supreme Court awarded sellers summary judgment on that counterclaim.
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