Longstanding Nevada legal precedents regarding “time is of the essence” clauses in real estate purchase agreements were enunciated by the Nevada Supreme Court in Goldston v. AMI Investments, Inc. 98 Nev. 567, 655 P.2d 521 (1982), R&S Investments v. Howard, 95 Nev. 279, 593 P.2d 53 (1979), and Holmby, Inc. v. Dino, 98 Nev. 358 (1982). However, in a prior case, Mosso v. Lee, 53 Nev. 176, 295 P. 776 (1931), the Nevada Supreme Court discussed that at common law a tender of money, which a party is bound to pay at a certain time and place, must be made on the day fixed for payment and not thereafter and that relief against forfeiture will not be granted where time of performance is made essential by the express terms of the contract, stating, “A court of equity has no more right than a court of law to dispense with an express stipulation of the parties in regard to time in contracts of this nature.” Nevertheless, the Mosso decision did rescue the defaulting purchaser from the harsh forfeiture of foreclosure of the “installment purchase agreement” whereby the installment purchaser (the equitable owner) was in default of a mere $63.75 in tax payments and interest and the seller had attempted to foreclose the equitable interest of the purchaser, pursuant to a harsh and inequitable forfeiture clause. The Mosso court rescued the defaulting purchaser as it has done in many “equitable conversion” type cases that arise under installment purchase agreements, to avoid harsh, unjust forfeitures.
“Equitable conversion” cases are those where the purchaser is purchasing property on an installment “contract for deed.” In such cases, even though the deed and “legal title” may not be delivered until all payments have been made, the “equitable title” is held by the purchaser in the interim. Similarly, in Slobe v. Kirby Stone, Inc., 84 Nev. 700, 447 P.2d 491 (1968), a contract for deed purchase, the Nevada Supreme Court rescued the purchaser from total forfeiture of the property, allowing the purchaser a reasonable time to cure, in spite of a time is of the essence clause, because the default was minor in comparison to the substantial forfeiture that would have occurred if the court had not rescued the buyer in equity. In Slobe, the installment purchaser was granted a reasonable time to cure an $8,320.28 default in light of the substantial $90,000 investment into the motel in dispute.
The courts have been willing to rescue purchasers from harsh forfeitures when they have taken legal, are peaceful possession, and have enhanced the property, and/or made substantial payments thereon. However, in non-equitable conversion cases the courts have not been so willing to rescue defaulting purchasers and will require strict compliance with the “time is of the essence” provision. In R&S Investments v. Howard, 99 Nev. 279, 1979, ibid, at 282, the Nevada Supreme Court held that,
In R&S Investments, ibid, the Nevada Supreme Court affirmed the lower court, noting at 282 that,
Even surrounding states’ appellate court decisions hold identically with the above cited Nevada case law, that a seller of real property, pursuant to a real estate purchase agreement, is justified in canceling the escrow if the purchaser has failed to perform a material part of the contract which is a condition concurrent or precedent to the seller's obligations to perform. See Integrated, Inc. v. Alec Furgusson Electrical Contractor, 58 Cal.Rptr. 503 (Cal.App. 1967). See also 5 Corbin, Corbin on Contracts § 1104 (1951); Restatement (Second) of Contracts § 237 (1979). It has also been recognized in Arizona that failure to tender timely performance can constitute a material breach of contract. Allan v. Martin, 117 Ariz. 591, 574 P.2d 457 (1978); Coronado Co., Inc. v. Jacome's Dept. Store, 129 Ariz. 137, 629 P.2d 553 (1981).
In Miceli v. Dierberg, 773 S.W.2d 154 (Mo.App.E.D. 1989), the purchaser of real property tendered his performance three hours beyond the specified time for performance. The appellate court ruled that the purchaser was in breach and not entitled to specific performance, because the “time is of the essence” clause and plain language contained in that purchase agreement caused the contract to expire precisely three hours prior to tendered performance.
The Idaho Supreme Court has also held that if neither party tenders performance by the date set for closure under a contract that provides time is of the essence, the duties of both parties are discharged by passage of that date. Associated Developers Co. v. Infanger, 376 P.2d 496 (Idaho 1962). These cases do not recognize the doctrine of substantial performance with respect to the buyer’s obligation to pay the full purchase price by the deadline for close of escrow. They have been incorporated by reference and are now recognized as Nevada precedent, since they were cited by the Nevada Supreme Court in Goldston v. AMI Investments, Inc. 98 Nev. 567 (1982), where it was further held that,
In Goldston the Court held as follows:
Goldston is still recognized as good law in Nevada (e.g Las Vegas Real Estate Law) by the 2007 unpublished opinion, Joel Schwartz vs. Rocio Garcia, No. 46960. The Buyer in Garcia was one business day late in depositing the full purchase price into escrow, but had previously taken unauthorized possession of the property and allegedly improved the property with a minimal paintjob, also unauthorized. In Garcia the Nevada Supreme Court reversed the trial court and affirmed its prior precedents on “time is of the essence,” strictly enforcing the time deadlines, stating, “this court will not rewrite the parties’ contract and will require strict compliance with the ‘time is of the essence’ provision. Holmby , Inc. v. Dino, 98 Nev. 358, 647 P.2d 392 (1982).”
Thus, the “time is of the essence” clause is still alive and well in Nevada and surrounding states, as known by Las Vegas Real Estate Lawyers. Most courts will rely on this clause and longstanding precedents to deny any relief to a late purchaser, based upon the sound legal principle that a purchase agreement expires by its own terms and will not be rewritten or extended by the court. The exception to the rule is applied to prevent a harsh, inequitable forfeiture of the type mentioned in Slobe, where a defaulting installment-contract purchaser is rescued from a harsh forfeiture which would not be justified by a relatively minor breach which could be cured within a reasonable time. In such cases the laws of equity will intervene to promote fairness and to avoid the harsh, inequitable forfeitures that would otherwise result through a strict application of “time is of the essence” clauses. In such cases the courts have favored an action for damages over a full forfeiture of a substantial equitable interest.
“Equitable conversion” cases are those where the purchaser is purchasing property on an installment “contract for deed.” In such cases, even though the deed and “legal title” may not be delivered until all payments have been made, the “equitable title” is held by the purchaser in the interim. Similarly, in Slobe v. Kirby Stone, Inc., 84 Nev. 700, 447 P.2d 491 (1968), a contract for deed purchase, the Nevada Supreme Court rescued the purchaser from total forfeiture of the property, allowing the purchaser a reasonable time to cure, in spite of a time is of the essence clause, because the default was minor in comparison to the substantial forfeiture that would have occurred if the court had not rescued the buyer in equity. In Slobe, the installment purchaser was granted a reasonable time to cure an $8,320.28 default in light of the substantial $90,000 investment into the motel in dispute.
The courts have been willing to rescue purchasers from harsh forfeitures when they have taken legal, are peaceful possession, and have enhanced the property, and/or made substantial payments thereon. However, in non-equitable conversion cases the courts have not been so willing to rescue defaulting purchasers and will require strict compliance with the “time is of the essence” provision. In R&S Investments v. Howard, 99 Nev. 279, 1979, ibid, at 282, the Nevada Supreme Court held that,
- The rule is well established that in order for a purchaser to successfully sue a vendor for damages for breach of a contract for the sale of land, the purchaser must show that he has performed all conditions precedent or concurrent, or that such performance has been excused. (Emphasis added.)
In R&S Investments, ibid, the Nevada Supreme Court affirmed the lower court, noting at 282 that,
- The judgment of the trial court, denying appellant’s claim for damages, was predicated upon its finding that ‘plaintiff did not make legal tender on or before September 5, 1973,’ and its conclusion that the contract therefore ‘expired as a matter of law, at midnight, September 5, 1973, because of Plaintiff’s failure to comply with the time of the essence provision.” (Emphasis added.)
Even surrounding states’ appellate court decisions hold identically with the above cited Nevada case law, that a seller of real property, pursuant to a real estate purchase agreement, is justified in canceling the escrow if the purchaser has failed to perform a material part of the contract which is a condition concurrent or precedent to the seller's obligations to perform. See Integrated, Inc. v. Alec Furgusson Electrical Contractor, 58 Cal.Rptr. 503 (Cal.App. 1967). See also 5 Corbin, Corbin on Contracts § 1104 (1951); Restatement (Second) of Contracts § 237 (1979). It has also been recognized in Arizona that failure to tender timely performance can constitute a material breach of contract. Allan v. Martin, 117 Ariz. 591, 574 P.2d 457 (1978); Coronado Co., Inc. v. Jacome's Dept. Store, 129 Ariz. 137, 629 P.2d 553 (1981).
In Miceli v. Dierberg, 773 S.W.2d 154 (Mo.App.E.D. 1989), the purchaser of real property tendered his performance three hours beyond the specified time for performance. The appellate court ruled that the purchaser was in breach and not entitled to specific performance, because the “time is of the essence” clause and plain language contained in that purchase agreement caused the contract to expire precisely three hours prior to tendered performance.
The Idaho Supreme Court has also held that if neither party tenders performance by the date set for closure under a contract that provides time is of the essence, the duties of both parties are discharged by passage of that date. Associated Developers Co. v. Infanger, 376 P.2d 496 (Idaho 1962). These cases do not recognize the doctrine of substantial performance with respect to the buyer’s obligation to pay the full purchase price by the deadline for close of escrow. They have been incorporated by reference and are now recognized as Nevada precedent, since they were cited by the Nevada Supreme Court in Goldston v. AMI Investments, Inc. 98 Nev. 567 (1982), where it was further held that,
- A seller of land pursuant to a contract of sale is justified in canceling the contract if the purchaser has failed to perform a material part of the contract which is a condition concurrent or precedent to the seller's obligation to perform. . . .Failure to tender timely performance can constitute a material breach of contract. . . . Additionally, if neither party tenders performance by the date set for closure under a contract that provides time is of the essence, the duties of both parties are discharged by passage of that date. Id. at 569, 655 P.2d at 523. (Emphasis added).
In Goldston the Court held as follows:
- Where the escrow agreement specifies a definite time for performance, performance must be made within the time limit of the agreement, and the escrow agent is without power to deliver a deed thereafter. Pothast v. Kind, 24 P.2d 771, 772 (Cal. 1933). "It is well settled that performance must be made within the time limit of the escrow agreement." Id. (Emphasis added).
Goldston is still recognized as good law in Nevada (e.g Las Vegas Real Estate Law) by the 2007 unpublished opinion, Joel Schwartz vs. Rocio Garcia, No. 46960. The Buyer in Garcia was one business day late in depositing the full purchase price into escrow, but had previously taken unauthorized possession of the property and allegedly improved the property with a minimal paintjob, also unauthorized. In Garcia the Nevada Supreme Court reversed the trial court and affirmed its prior precedents on “time is of the essence,” strictly enforcing the time deadlines, stating, “this court will not rewrite the parties’ contract and will require strict compliance with the ‘time is of the essence’ provision. Holmby , Inc. v. Dino, 98 Nev. 358, 647 P.2d 392 (1982).”
Thus, the “time is of the essence” clause is still alive and well in Nevada and surrounding states, as known by Las Vegas Real Estate Lawyers. Most courts will rely on this clause and longstanding precedents to deny any relief to a late purchaser, based upon the sound legal principle that a purchase agreement expires by its own terms and will not be rewritten or extended by the court. The exception to the rule is applied to prevent a harsh, inequitable forfeiture of the type mentioned in Slobe, where a defaulting installment-contract purchaser is rescued from a harsh forfeiture which would not be justified by a relatively minor breach which could be cured within a reasonable time. In such cases the laws of equity will intervene to promote fairness and to avoid the harsh, inequitable forfeitures that would otherwise result through a strict application of “time is of the essence” clauses. In such cases the courts have favored an action for damages over a full forfeiture of a substantial equitable interest.
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