Most state courts, including the Nevada Supreme Court, recognize and enforce the integrity of the “time is of the essence” clauses. The Nevada Supreme Court recognizes that, in common law, an offer of money, which a party is required to pay at a specified time and place, must be made on the day set for payment, and not after, and will not be awarded. compensation against confiscation. granted when the execution time is made essential by the express terms of the contract, stating, “[a] The court of equity has no more right than a court of law to a waiver with an express stipulation of the parties regarding the time in contracts of this nature. “In one case, the Nevada Supreme Court rescued the defaulting buyer from the harsh loss from foreclosure. of the “installment purchase agreement” whereby the installment buyer (the fair owner) was in arrears of only $ 63.75 in tax and interest payments, and the seller had attempted to foreclose Buyer’s Equitable Interest Mortgage, pursuant to a Hard and Unfair Forfeiture Clause Many times the court will bail out the delinquent buyer, as it has done in many “fair conversion” type cases that arise under installment purchase agreements, to avoid severe and unjust confiscations.
“Equitable conversion” cases are those in which the buyer is purchasing a property in an installment “deed”. In such cases, even if the deed and “legal title” are not delivered until all payments have been made, “equitable title” remains with the buyer in the interim. In a frequently cited contract for the purchase of deeds, the Nevada Supreme Court rescued the buyer from total forfeiture of the property, giving the buyer a reasonable time to remedy, even though time is an essential clause, because non-compliance it was less in comparison. to the substantial forfeiture that would have occurred if the court had not bailed out the buyer in equity. On Slobe, the installment buyer was given a reasonable time to cure a default of $ 8,320.28 in light of the substantial investment of $ 90,000 in the disputed motel. Courts have been willing to bail buyers from harsh seizures when they have peacefully and lawfully taken possession and improved the property and / or made substantial payments for it. However, in cases of unfair conversion, the courts have not been as willing to bail out and will require strict compliance with the “time is of the essence” provision. The Nevada Supreme Court has held that, [t]The rule is well established that in order for a buyer to successfully sue a seller for damages for breach of a land sale contract, the buyer must show that they have met all of the preceding or competing conditions, or that said compliance has been excused. .
Even the decisions of the court of appeals of the surrounding states hold identically to Nevada jurisprudence, that a seller of real estate, pursuant to a real estate purchase agreement, is justified to cancel the escrow if the buyer has not fulfilled a material part of the contract that is provided competitor or precedent to the seller’s obligations to perform. In one case, the real estate buyer offered his performance three hours beyond the specified time for the performance. The appeals court ruled that the buyer was in default and was not entitled to a specific performance, because the “time is of the essence” clause and the plain language contained in that purchase agreement caused the contract to expire exactly three hours earlier. of the tendered execution.
It has been held that if neither party bids for performance on the date set for closing under a contract that provides time is essential, the obligations of both parties are fulfilled past that date.
When the escrow agreement specifies a defined time for performance, the performance must be within the time limit of the agreement, and the escrow agent has no power to deliver a deed thereafter. It is well established that compliance must take place within the time limit of the custody agreement.
The Nevada Supreme Court recently held that “this court will not rewrite the parties’ contract and will require strict adherence to the” time is of the essence “provision.
So real estate agents, attorneys, and buyers should be careful: the “time is of the essence” clause is still alive in Nevada and the surrounding states. Most courts will rely on this clause and long-standing precedents to deny any reparations to a late buyer, based on the strong legal principle that a purchase agreement expires on its own terms and will not be rewritten or extended by the court. The exception to the rule applies to avoid a severe and unfair forfeiture where a buyer with a defaulting installment contract is rescued from a severe forfeiture that would not be justified by a relatively minor violation that could be remedied in a reasonable amount of time. In such cases, equity laws will intervene to promote equity and avoid harsh and unfair confiscations that would otherwise result from strict application of the “time is of the essence” clauses. In such cases, the courts have favored an action for damages out of the total loss of a substantial equitable interest.
Copyright 2008, all rights reserved. www.HugginsLaw.com
