On appeal from Superior Court of New Jersey, Chancery Division, Cape May County, C-39-99.
Before Judges Stern and Collester.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2000
Defendant, Vivian Lasko, appeals from a judgment of specific performance which ordered her to deliver a deed to plaintiffs, Kenneth W. Gross and Bonnie D. Gross, pursuant to a contract of sale signed in March 1999. The matter was tried summarily on certifications filed with the trial judge. On September 7, 1999, Judge Callinan concluded in a letter opinion that plaintiffs were entitled to specific performance. We affirm.
The salient facts are as follows. In February 1999, plaintiffs, who were residents of Pennsylvania, were searching for a vacation home in Avalon, New Jersey and using the services of Sandra Struble, a licensed real estate agent. Defendant's property located at 39 Flamingo Avenue in Avalon, was listed for sale with Miriam Kauterman, also a New Jersey licensed real estate agent. On March 20, 1999, a contract of sale was signed for the purchase of the property for a total purchase price of $680,000. Plaintiffs provided an initial deposit of $64,000, and the remaining balance of $616,000 was to be paid at the time of closing scheduled for May 17, 1999.
The agreement contained a mortgage financing contingency, which read as follows:
[t]he Buyer and Seller agree to make a good faith effort to obtain mortgage financing upon the terms listed below. The Buyer has until April 14, 1999, to obtain a commitment for this mortgage financing or to agree to buy the property without this mortgage financing. After this deadline, and any agreed upon extension, either party may cancel this contract if the mortgage as stated below has not been obtained. Buyer agrees to apply for said mortgage within 5 days of the final execution of this agreement (i.e., when all parties have signed it).
Type of Mortgage Financing: CONVENTIONAL Points: Not to Exceed to Buyer: 3.0, Seller: 0.0, Amount of Mortgage Financing: $440,000.00, Interest Rate: (Not to Exceed) 7¼%, Length of Mortgage Financing: 30 years with monthly payment based on a 30 year payment schedule.
The Buyer may agree at their option to accept other financing which is adequate for the Buyer to complete settlement. The Buyer's acceptance of such financing will remove the Mortgage Financing Contingency above.
On April 9, 1999, Kauterman advised Struble that defendant no longer wanted to sell the property. Struble told plaintiffs, but they had no interest in canceling the contract since they had made plans for modifications to the property and bought furniture in anticipation of the closing. The following day plaintiffs met with Kauterman, who confirmed that defendant wanted out of the agreement. Plaintiffs told Kauterman that they were not willing to cancel and would proceed to closing without mortgage financing. The next day Kauterman advised defendant that plaintiffs wanted the property and were ready to close without mortgage financing. A few days later Kauterman told plaintiffs that defendant understood that she had to complete the sale and that she had been to Kauterman's office to sign a lease on another house for the summer. At no time did Kauterman suggest the defendant was awaiting written notice of plaintiffs' election to proceed without mortgage financing.
However, by letter of April 20, 1999, defendant's attorney informed plaintiffs that defendant was canceling the contract for plaintiffs' "default under Section 23," because they failed to provide defendant with written notice that they were waiving the mortgage financing contingency. Paragraph 23 defined "buyers' default" in the contract as a failure "to fulfill or perform any of the terms or conditions of this agreement," and gave the seller the option to cancel and retain all deposits.
Two days later plaintiffs' attorney wrote that plaintiffs insisted on the purchase of the property. He also stated that the contract gave plaintiffs until April 14, 1999, to obtain mortgage financing or to elect to buy the property without such financing and that plaintiffs had notified defendant's agent on April 10, 1999, that they intended to proceed with the purchase without a mortgage. Defendant's attorney responded that defendant denied being informed by Kauterman that plaintiffs intended to waive the mortgage contingency provision and that, in any event, no notification of the waiver was received in writing.
The central issue at trial was whether written notice was necessary to waive the mortgage contingency clause. Plaintiffs argued that if written notification was required, the contract should have so stated in the mortgage contingency clause. Defendant denied receiving oral notice of the waiver and ...