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Buyer Wins Specific Performance, Can Close Now

Deborah Elkins//January 17, 2013

Buyer Wins Specific Performance, Can Close Now

Deborah Elkins//January 17, 2013

As the defendant has failed to show by clear and convincing evidence that the plaintiff real estate buyer failed to cancel, rescind or otherwise repudiate the purchase contract, the Virginia Beach Circuit Court grants judgment for plaintiff and orders specific performance of the contract.

The main defense of defendant seller is that the buyer cancelled or rescinded the contract in November 2010. Cancellation or rescission must be proven by clear and convincing evidence, and defendant primarily relied upon the testimony of Mauro Zenarolla to establish this defense. After a review of the evidence presented, the court finds that defendant Metropolitan Property Investments LLC has failed to prove cancellation by clear and convincing evidence. Likewise, Metropolitan did not establish that plaintiff abandoned the contract.

At trial, Metropolitan also asserted the contract violated the Rule Against Perpetuities and that it was indefinite. These defenses also fail. Twenty-one years have not yet passed since execution of the contract, so it does not violate the Rule Against Perpetuities. Also, to the extent the contract arguably does not set a closing date, the law implies a reasonable time for performance. Finally, the contract is not indefinite as regards the cost of removing underground storage tanks, because it specifies that any cost shall be the buyer’s responsibility. Therefore, the court orders specific performance of the March 3, 2009, real estate sales contract between the parties.

The court is concerned about the sluggish pace of plaintiff’s work towards meeting the contractual requirements for closing. However, the witness appearing on behalf of plaintiff repeatedly and emphatically stated at trial that plaintiff was ready to close “now” with the status of approvals and permits and that it would waive contract contingencies to close right that moment.
Accordingly, the court holds plaintiff to its statements that it would waive those contingencies in order to close immediately, and orders plaintiff to forthwith submit a final site plan to the city of Virginia Beach and to expeditiously do whatever might be required to obtain approval of the site plan and proceed to closing.

Lee Hall Plaza Inc. v. Metropolitan Property Investments LLC (Hanson) No. CL 11-4664, Dec. 17, 2012; Va. Beach Cir.Ct.; James C. Cosby for plaintiff; William C. Bischoff for defendant. VLW 013-8-004, 2 pp.

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