LEONOR GARCIA, FRANCISCO GARCIA, CRISTOBAL BRITO AND HORTENSIA BRITO, APPELLANTS,
v.
PERCY D. ALFONSO AND MIRTA ALFONSO, APPELLEES
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The court held that the buyers were not entitled to specific performance because they failed to obtain a mortgage financing commitment within the time specified in the contract, despite a "time is of the essence" clause.
Appellants (sellers) sought to cancel a contract for sale and purchase due to appellees' (buyers) failure to obtain mortgage financing within thirty d…
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PER CURIAM.
Appellants, the sellers of real property and the purchasers under a second contract, seek review of a final judgment granting specific performance in an action brought by appellees-claimants under an earlier contract to purchase. The sellers had purportedly cancelled the contract for failure of the claimants to satisfy certain conditions within a specified time period.
The trial judge’s findings that the claimants had, within thirty days from the date of the agreement, obtained a firm commitment for mortgage financing as required by the contract is not supported by, in fact is contrary to, the evidence. Considering all the circumstances, particularly that a foreclosure of a second mortgage was imminent, it is clear that the “time is of the essence” clause in the Contract for Sale and Purchase was not a stock phrase but was intended to give the sellers an immediate right to cancel the contract if the buyers were unable to timely demonstrate an ability to purchase. See 3A Corbin, Contracts § 715 (1960); Restatement (Second) of Contracts § 242 comment d (1981) (such stock phrases as “time is of the essence” do not necessarily have the effect of discharging the injured party’s duties immediately, although they are to be considered along with other circumstances).
Claimants did not obtain an institutional commitment for financing until three weeks after the thirty-day period had expired, which was seventeen days after the sellers had notified them of the cancellation and nine days after a new contract had been entered into with the new purchasers. They were not entitled to specific performance. Robinson v. Abreu, 345 So. 2d 404 (Fla. 2d DCA 1977). See also Sun Bank v. Lester, 404 So. 2d 141 (Fla. 3d DCA 1981) (party not entitled to specific performance where deposit untimely and time was of the essence), rev. denied, 412 So. 2d 467 (Fla.1982).
Reversed and remanded with instructions to enter judgment for the defendants.
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Rybovich Boat Works, Inc. v. Atkins, 587 So. 2d 519 (Fla. 4th DCA 1991)…er clause of the contract. A time of the essence clause is “not a stock phrase but was intended to give the sellers an immediate right to cancel the contract if the buyer were unable to timely demonstrate an ability to purchase.” Garcia v. Alfonso, 490 So. 2d 130, 131 (Fla. 3d DCA 1986). Where time is of the essence no notice of a default is required. Delta Mobile Homes, Inc. v. Ehmann, 275 So. 2d 269 (Fla. 3d DCA 1973). In this case the time of the essence provision in the contract clearly required the buye…
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Kissman v. Panizzi, 891 So. 2d 1147 (Fla. 4th DCA 2005)…it until closing and be left with legal remedies against an empty pocket. As the expert testified, the financing provision in this contract did not contain such a bilateral right of termination. The sellers analogize this case to Garcia v. Alfonso, 490 So. 2d 130 (Fla. 3d DCA 1986). There, in a brief opinion, the court concluded that where “time is of the essence” in a contract, the failure of the buyer to comply with a financing contingency clause allowed the seller to terminate the contract.. The problem w…
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Arvilla Motel, Inc. v. Shriver, 889 So. 2d 887 (Fla. 2d DCA 2004)…s that the parties clearly intended to make time essential as to the closing date, we conclude that Arvilla had “an immediate right to cancel the contract if the [buyer was] unable to timely demonstrate an ability” to perform. See Garcia v. Alfonso, 490 So. 2d 130, 131 (Fla. 3d DCA 1986). Arvilla, the nondefaulting party, was not required to grant an extension of time for the closing and was within its rights to declare forfeiture after Shriver made no attempt to close on August 26. See Seabreeze Rest., Inc.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- SUN Bank OF Miami v. Rozanne G. Lester, 404 So. 2d 141 (Fla. 3d DCA 1981)
- Robinson v. Abreu, 345 So. 2d 404 (Fla. 2d DCA 1977)