In the case Natale, et al. v. Ernst, the buyer (Matthew Ernst) purchased a parcel of land from the seller (James Natale) on one side of the highway. Just before closing, the buyer and seller learned that the sale would necessarily include a small lot on the other side of the highway, which would be difficult to subdivide away from the parcel originally planned to be transferred.
The buyer and seller agreed to the sale of both lots at the original purchase price, on the condition that the buyer would make efforts to subdivide the additional lot and transfer it back to the seller and, if unsuccessful obtaining the subdivision by a certain date, have the small lot appraised and pay the seller the fair market value for it.
The buyer, however, was unable to obtain the subdivision by the deadline — nor did he have the property appraised or otherwise follow the agreed-upon procedure to purchase the small lot from the seller. However, the seller’s attorney — with the approval of the buyer’s attorney — continued to pursue subdivision for several years and eventually obtained it, at which time the buyer refused to transfer the lot back to the seller.
At trial, the seller argued that the buyer had waived the deadline. The trial court agreed and ordered the buyer to reconvey the small lot to the seller.
On appeal, the trial court’s ruling was upheld. The appellate court found that the buyer waived enforcement of the deadline. The record reflected numerous letters over the years after the deadline from the buyer’s attorney to the seller’s attorney — copying the buyer — encouraging the seller’s continued efforts to have the lot subdivided, and expressly declaring the buyer’s continued intention to honor the agreement to reconvey the lot.
The buyer acknowledged that while he didn’t recall receiving his copies of these letters, it was entirely possible that he received and "circular filed" them (that is, discarded them). Accordingly, the appeals court affirmed the trial court’s finding that the buyer waived the deadline and failed to withdraw the waiver, and upheld the lower court’s order that the buyer reconvey the lot to the seller.
Tara-Nicholle Nelson is author of "The Savvy Woman’s Homebuying Handbook" and "Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions." Ask her a real estate question online or visit her Web site, www.rethinkrealestate.com.
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