VIRGIL STEFFENS, INDIVIDUALLY AND AS TRUSTEE, APPELLANT,
v.
GEORGE URGO, APPELLEE
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A buyer sought recovery of his deposit on a real estate purchase agreement after failing to obtain a building permit within the 60-day contingency period. The court affirmed the lower court's judgment for the buyer, holding that the buyer made a good faith effort to comply with the contingency by timely submitting and resubmitting building plans, placing the burden on the seller to prove bad faith, which the seller failed to do.
The buyer is entitled to recovery of his deposit. When a sales agreement contains a contingency, the buyer must make a good faith effort to comply with it. Timely submission of building plans to the building department is evidence of good faith, and once the buyer demonstrates such good faith efforts, the seller has the burden of proving bad faith to retain the deposit. The seller failed to meet this burden.
[1] A sales agreement contingent on obtaining a building permit requires the buyer to make a good faith effort to comply with the contingency.
[2] The timely submission of building plans to the relevant department is evidence of a buyer's good faith effort to satisfy a permit contingency.
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Join FLexlaw to unlock all legal intelligence“When a sales agreement contains a contingency such as this, the buyer has to make a showing of a good faith effort to comply with it.”
Establishes the fundamental requirement that contingency clauses require good faith effort from the buyer
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Join FLexlaw to unlock all legal intelligenceThe seller and buyer entered into a sales agreement for real estate contingent on the buyer's ability to secure a building permit from the City of Stu…
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LETTS, Chief Judge.
Appellee entered into a sales agreement to buy a parcel of real estate from appellant. Said agreement provided that it was “contingent on the buyers’ ability to secure a building permit from the City of Stuart for an office building and warehouse complex within 60 days.” The agreement made no reference to any specific office building and warehouse complex of any particular size, nature or description. As it turned out, the buyer was unable to get a permit for a complex as large as he desired. Therefore, when the sixty days for obtaining a permit passed, he sued for recovery of his deposit made pursuant to the agreement. The lower court entered a final summary judgment in his favor, granting him a return of the deposit. We affirm.
The seller suggests that what we have here is a purchaser who placed a vague contingency in a sales agreement and then designed his proposed building «so as to insure that the contingency could not be fulfilled. However the record does not support any such course of conduct. All the record reveals is that the plans presented for the building were rejected by the city because of insufficient parking spaces (we are not told the number). The record then shows a resubmission of the plans with an increase from twelve to eighteen parking spaces and a decrease in area of the proposed building from 15,000 square feet to 11,700 square feet. There is no showing why this amended set of plans was rejected. In fact, there is not even an allegation or a showing that the original plans presented were anything other than those contemplated when the contingency was written into the agreement.
When a sales agreement contains a contingency such as this, the buyer has to make a showing of a good faith effort to comply with it. The timely submission of plans to the building department is in and of itself evidence of such good faith, particularly so in this instance because of evidence of resubmission of an amended plan with less square footage and fifty percent more parking. At that juncture the seller had the burden of demonstrating some bad faith which was not done here. There is no allegation nor any evidence that the purchaser did not proceed in good faith. Ergo, under the terms of the sales agreement he is entitled to a return of his deposit.
This case is distinguishable from Lee v. Bowlerama Enterprises, Inc., 368 So. 2d 913 (Fla.3d DCA 1979), relied on by the seller. In Lee the court carefully pointed out that there was no attempt to get approval for a smaller building and no attempt to secure a readily available alternative liquor license. Thus in Lee there was evidence to support a showing of lack of good faith, while in the case now before us there is none.
AFFIRMED.
DOWNEY and WALDEN, JJ., concur.
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Galt View Apts., Inc. v. Fazio, 490 So. 2d 1005 (Fla. 4th DCA 1986)…b with a liquor license. Thus, the subjective intent of a party, not incorporated into the written agreement, may not be relied upon to avoid enforcement of performance where the condition, as written, has been or could be met. In Steffens v. Urgo, 425 So. 2d 658 (Fla. 4th DCA 1983), we held that where a sales contract contains a contingency similar to the one here, the law imposes a requirement that there be a good faith effort to comply with or to seek compliance with the contingency. Where time is a facto…
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Sirkin v. Hutchcraft, 507 So. 2d 765 (Fla. 2d DCA 1987)…1005 (Fla. 4th DCA 1986). In a context paralleling the one before us, it was determined that “[w]hen a sales agreement contains a contingency such as this, the buyer has to make a showing of a good faith effort to comply with it.” Steffens v. Urgo, 425 So. 2d 658, 659 (Fla. 4th DCA 1983). The court observed in Urgo that the submission of building plans to the appropriate governmental body is evidence of good faith. Id, Here, the record is barren of any evidence to support the finding of a good faith attempt…
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R.V. Land Dev., Inc. v. Deer Lake R.V. Resort, 659 So. 2d 1110 (Fla. 2d DCA 1995)…e’s part. We have held that when an agreement contains a contingency such as this, the mortgagor must make a showing of a good faith effort to comply with it. See Sirkin v. Hutchcraft, 507 So. 2d 765, 767 (Fla. 2d DCA 1987), citing Steffens v. Urgo, 425 So. 2d 658, 659 (Fla. 4th DCA 1983). The trial court found that due diligence did not compel Deer Lake to seek a change in the allowable land use or the governing law. The evidence simply does not support this finding. The sales contract provided that Deer La…
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- LEE v. Bowlerama Enters., Inc., 368 So. 2d 913 (Fla. 3d DCA 1979)