It is common for a real estate purchase offer to be subject to certain conditions in favor of the buyer, which allow them to not be obligated to purchase if these conditions are not met.
It is common for a promise (offer) to purchase a property to be subject to certain conditions stipulated in favor of the buyer, which allow them to not be bound to buy if these conditions are not met.
Thus, a Developer who has acquired land to build a residence for the elderly, puts it up for sale due to "lack of the necessary financing to carry out the project". Subsequently, a Builder pays the Developer a deposit of $125,000 and signs a purchase offer with certain suspensive conditions, in particular, a zoning change subject to the acceptance of their project by the city. No deadline is specified in the offer for the fulfillment of this condition.
Two years pass, no zoning change is obtained but the value of the land soars. The Builder, after hearing a rumor that the Developer wishes to sell the land to a third party, waives all conditions stipulated in their favor in the offer and notifies the Developer.
As the latter refuses to sign the deed of sale, the Builder brings an action for specific performance. After losing in the first instance, the Builder appeals the case and the Court* rules in their favor.
The court acknowledges that the Builder could unilaterally waive the suspensive condition stipulated in their favor and concludes that it is not necessary for the offer to contain a clause allowing them to waive this condition. Furthermore, even if a clause provides that the deposit is refundable if there is no zoning change, this clause, being merely incidental to the suspensive condition, should not be interpreted as a cause leading to the nullity of the offer.
Thus, one may wish to obtain the fulfillment of certain conditions without necessarily demanding it, but one cannot demand it without having wished for it!
*C.A. 200-08-000169-150
