time of essence past, want deposit back!

What is the name of your state? New York
I signed a contract and gave a downpayment to purchase a house. Closing with time of the essence stipulated was supposed to be 1-13-03. That morning, the seller's attorney could not produce proof of a clean title (I found out on 1-10-03 that sellers title had a lien on it). Since "time of the essence" has expired, I want to cancel the deal, but sellers are refusing to return my deposit. Do I have the right to sue? And what are my chances?

[HomeGuru]

[quote]Originally posted by 1stimebuyer
[b]What is the name of your state? New York
I signed a contract and gave a downpayment to purchase a house. Closing with time of the essence stipulated was supposed to be 1-13-03. That morning, the seller's attorney could not produce proof of a clean title (I found out on 1-10-03 that sellers title had a lien on it). Since "time of the essence" has expired, I want to cancel the deal, but sellers are refusing to return my deposit. Do I have the right to sue? And what are my chances?

**A: yes. Good.

My state: New York
I re-read a "title clause" in the contract, stating that if there was a lien on the title, the seller shall have 60 days to fix the defect and set a new closing date. No attorney has been able to tell me if my original 30 day declaration of time of the essence overrides this clause.

[HomeGuru]

[quote]Originally posted by 1stimebuyer
[b]My state: New York
I re-read a "title clause" in the contract, stating that if there was a lien on the title, the seller shall have 60 days to fix the defect and set a new closing date. No attorney has been able to tell me if my original 30 day declaration of time of the essence overrides this clause.

**A: that's because you never provide the full and complete facts.
If you post verbatim the time is of the essence clause AND the title clause from your contract, I may consider helping you.

My state: new york
ok homeguru, you asked for verbatim, well here it is:

Clause #1 (in contract)
if at the date of closing seller is unable to transfer title to purchaser whether by reason of liens, or other encumbrances or defects, seller shall have the right to take such action as to remove or remedy such defect or to cancel this contract. If seller elects to take action, seller shall be entitled from time to time to adjorn the date for closing for a period not exceeding 60 days. If seller shall not have succeeded in removing or remedying such defect at the expiration of such adjornments, then either party may cancel this contract and seller shall promptly refund the downpayment to the purchaser.

Clause #2 (amendment attached to contract)
The parties agree that if for any reason whatsoever except seller's wilful default, seller is unable to deliver to the purchaser a good and marketable title, seller may rescind this contract and upon returnign to the purchaser the sum paid on the signing of this contract and this contract shall be cancelled.

Clause #3 (letter sent by my attorney to seller's attorney)
Time of the essence was declared by the purchasers with regard to closing on or before Jan 10, 2003. An extension was granted at the request of the sellers to change the closign date to Jan 13, 2003 at 1pm, time continuing to be of the essence. Time for sellers to perform has expired as a result of their inability to deliver clear title to the premises. Purchasres hereby exercise their right to terminate the contract and request the immediate return of their downpayment.

The sellers claim that my termination is not legally justified because I am not giving them a reasonable amount of time to clear up the title issue. Does time of the essence override clause #1?

[HomeGuru]

[quote]Originally posted by 1stimebuyer
[b]My state: new york
ok homeguru, you asked for verbatim, well here it is:

Clause #1 (in contract)
if at the date of closing seller is unable to transfer title to purchaser whether by reason of liens, or other encumbrances or defects, seller shall have the right to take such action as to remove or remedy such defect or to cancel this contract. If seller elects to take action, seller shall be entitled from time to time to adjorn the date for closing for a period not exceeding 60 days. If seller shall not have succeeded in removing or remedying such defect at the expiration of such adjornments, then either party may cancel this contract and seller shall promptly refund the downpayment to the purchaser.

Clause #2 (amendment attached to contract)
The parties agree that if for any reason whatsoever except seller's wilful default, seller is unable to deliver to the purchaser a good and marketable title, seller may rescind this contract and upon returnign to the purchaser the sum paid on the signing of this contract and this contract shall be cancelled.

Clause #3 (letter sent by my attorney to seller's attorney)
Time of the essence was declared by the purchasers with regard to closing on or before Jan 10, 2003. An extension was granted at the request of the sellers to change the closign date to Jan 13, 2003 at 1pm, time continuing to be of the essence. Time for sellers to perform has expired as a result of their inability to deliver clear title to the premises. Purchasres hereby exercise their right to terminate the contract and request the immediate return of their downpayment.

The sellers claim that my termination is not legally justified because I am not giving them a reasonable amount of time to clear up the title issue. Does time of the essence override clause #1?

**A: no. You are bound by clause #1 and the ammendment, therefore closing is extended 60 days from Jan 13, 2003.