We are a week past the date for home closing contract. I'm in New York... Can I get out of it?
3 Answers from Attorneys
Was "time is of the essence" included in contract?
Unless the contract states a "time of the essence" closing date, which is rare, the closing date in the contract is an approximate date unless either party declares time to be of the essence by written notice to the other party. Case law on this subject is somewhat unclear. However, courts have recognized notice between 8 days to 30 days as being sufficient, depending on circumstances.
On that date, you have to be ready, willing and able to close. If you are not, you cannot hold the buyer in default, even if you have properly declared a valid time of the essence closing.
A little known wrinkle: "at law," time is always of the essence. ("In equity," it almost never is; the line between law and equity is not clear, but money remedies are almost always "legal" while property is often equitable There are many steps to invoking this right, but if your lawyer dances the baroque quadrille, you're entitled to get back your downpayment. You'd still be bound to the contract, but without the leverage due to the down payment. In the opposite direction, if the BUYER adjourns the closing, the seller is entitled to immediate possession of the down payment.
99% of all lawyers don't know this rule. And it won't make you any friends. But it is the law and would give all concerned a jolly good ride.