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THE CONTRACT OF SALE INCLUDED THE PURCHASER’S AGREEMENT TO FORFEIT THE DOWN PAYMENT IF SHE DID NOT CLOSE ON THE AGREED DATE; THEREFORE THE SELLERS WERE ENTITLED TO THE DOWN PAYMENT; UNJUST ENRICHMENT CANNOT BE CLAIMED IN THE FACE OF A WRITTEN AGREEMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the failure to close on the date agreed to in the contract of sale was a default entitling defendants to retain the down payment:

Defendants submitted a signed copy of the contract of sale, which contains all the material terms, and the amendment to the contract, pursuant to which plaintiff agreed that, in exchange for additional time to close on the purchase, she would cover defendants’ carrying costs and would waive any right to recovery of the down payment if she did not close on the sale by the agreed-to date. Plaintiff did not close by the required date, and the balance of the down payment was remitted to defendants. Plaintiff’s failure to close by the agreed-to date constitutes a default under the purchase agreement and the amendment thereto, and the default entitles defendants to retain the down payment as liquidated damages pursuant to paragraph 13.1 of the purchase agreement and paragraph 5 of the amendment … .

Similarly, a claim for unjust enrichment will not stand in the face of the written agreement … . An appeal to equity is equally unavailing, since the law is established that “a vendee who defaults on a real estate contract without lawful excuse cannot recover his or her down payment” … . Jennings v Silfen, 2021 NY Slip Op 05923, First Dept 10-28-21

 

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