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  • "Time is of the essence"

    I have been recently reminded how USAnian law dudes(at least those that operate in NYS) fear that clause above all others in a contract. It cracks me up.

  • #2
    Re: "Time is of the essence"

    Originally posted by MJD
    I have been recently reminded how USAnian law dudes(at least those that operate in NYS) fear that clause above all others in a contract. It cracks me up.
    Forgive me for chasing you thread to thread, but what is there to 'fear'? There are no repercussions to that 'clause'. And . . . time IS of the essence . . . always.

    "But at my back I always hear
    Time's wing├Ęd chariot hurrying near:
    And yonder all before us lie
    Deserts of vast eternity."

    YOU will be long gone in 50 years, which, when you think about it, is not long at all!!!

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    • #3
      Once again, you have no idea what you are talking about. In NYS(at least the county where I am), the only way to get a deal to close on the day that two parties AGREE to close it on is to put that clause in. It's a law dude thing. Somewhere in the contract, there is a some legalese that talks about the closing being in accordance with the standards of whatever county. If two canucks agreed to close a property deal in NYS on a date certain, they have no idea when it will get closed. I learned my lesson when I bought my first property down here. It was to close on a certain day and I was ready, willing and able to close on that day and found out that it wouldn't and it was up to the lawyers to decide when it was going to close. My lawyer explained to me that the only way around that is to put the time is of the essence clause in. I ask my real estate agent about that and she says that she knew about that clause but everyone hates them so they don't go in. The next property I bought had that clause in the agreement and it was hilarious. It reminded me of Howard Beale. Everyone was was screaming from their office windows: "WE HAVE A TIME IS OF THE ESSENCE DEAL HERE". Title searchers, title insurance people, banks, real estate agents, etc. etc. were all put out. In Ontario, deals are closed when they are supposed to close or there are consequences.

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      • #4
        Originally posted by MJD
        Once again, you have no idea what you are talking about. In NYS(at least the county where I am), the only way to get a deal to close on the day that two parties AGREE to close it on is to put that clause in.
        Thanks for the gratuitous insult . . . again . . . :roll: . . . but actually even **I** am smart enough to realize there IS NO LEGALLY BINDING essence to that clause AT ALL!!!!! So they don't close for weeks. Time is relative; weeks might be soon to some folks. No one can sue anyone over the ambiguity of the clause, "time is of the essence". Y'think, skippy??!! The antithesis is "due course and all DELIBERATE speed", which also means nothing. With apologies to Law Dude, lawyers tend to get in a lather about EVERYTHING, which was, of course, your original point, but you were in such a hurry to point out my Total Ignorance about Everything in the World, you seemed to have forgotten that. :P If time REALLY were of the essence, they'd put in a Drop-Dead date (with daily $$$ penalties), which I had in all my home buys.

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        • #5
          Wrong again. That clause basically means that everybody really means it with respect to the closing date. It's the "essential" clause that must be adhered to is my layman's interpretation of the stupidity that permits law dudes to get away with such nonsense.

          Funny-I just found this definition:

          time is of the essence n. a phrase often used in contracts, which, in effect says: the specified time and dates in this agreement are vital and thus, mandatory, and "we mean it." Therefore, any delay, reasonable or not, slight or not, will be grounds for canceling the agreement.


          Strikes me as redundant and I have no idea how law dudes can get away with closing deals whenever they feel like it if it isn't in there. I tell everyone involved in property deals in Ellicottville to put that clause in their agreements.

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          • #6
            The clause probably originated when a client first told his law dude that if his deal didn't close when the law dude said it would close, the law dude wasn't going to get paid.

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            • #7
              Originally posted by MJD
              and "we mean it."
              Is the ludicrously silly tenor* of that phrase lost on you?

              *
              tenor - 4. Law a. The exact meaning or actual wording of a document as distinct from its effect.

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              • #8
                I don't know what you are saying. All I know is that "we really really mean it" clauses are redundant and have no place in an agreement and make the whole law dude profession look silly. Couldn't get away with it in Ontario. The closing date is the closing date. The clause will usually say: "the transaction will close on such and such a day". Why does anything else have to be added to that to give it proper effect? You're the TOE.

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                • #9
                  I am starting to wonder whether USAnian law dudes as a whole are several centuries behind in the wording of real estate contracts or if it just a backwoods WNYS thing. My brother is in the process of trying to get a bigger place and he is shocked and horrified at what he has to change in the "standard" purchase and sale agreement which, I suspect, most morons just sign. The "we really mean it" clause is only effective, by the way, if one of the parties gives 7 days notice or it is off the table. Two redundancies. Would something like that really stand up in court?

                  There is a typical clause in a real estate agreement that makes the deal conditional on the buyer selling his property. That clause is in there for the benefit of the buyer and may be waived if the buyer gives notice-at least in the real world. In WNY(and I don't know if it is the case in the rest of the country), the VENDOR can get out of the deal if the buyer doesn't sell his property. More major rewrites in the standard agreement. I could give several more examples.

                  I am stunned. I always give the US credit for being the best in most things but not real estate contracts-at least in WNY.

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                  • #10
                    Originally posted by MJD
                    I am starting to wonder whether USAnian law dudes as a whole are several centuries behind in the wording of real estate contracts or if it just a backwoods WNYS thing. My brother is in the process of trying to get a bigger place and he is shocked and horrified at what he has to change in the "standard" purchase and sale agreement which, I suspect, most morons just sign. The "we really mean it" clause is only effective, by the way, if one of the parties gives 7 days notice or it is off the table. Two redundancies. Would something like that really stand up in court?
                    Maybe.

                    Originally posted by MJD
                    There is a typical clause in a real estate agreement that makes the deal conditional on the buyer selling his property. That clause is in there for the benefit of the buyer and may be waived if the buyer gives notice-at least in the real world. In WNY(and I don't know if it is the case in the rest of the country), the VENDOR can get out of the deal if the buyer doesn't sell his property.
                    That does sound odd, but if you didn't let the vendor get out, you'd essentially have a one-way deal unless the condition were worded in such a way as to require the buyer to use best efforts, or reasonable efforts (both of which phrases are invitations to litigation) to sell his house. I'm not sure what the standard practice is outside of WNY. I've never done a residential real estate deal in my life.

                    This is probably a case where one size fits none and a good law dude representing either side will think twice before accepting the language of that form,

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                    • #11
                      In Canada, if the vendor gets another offer, he can go to the purchaser and force him to waive the clause. That is the typical wording. In WNY the buyer HAS to sell his property to close the deal or the vendor can get out if he thinks he made a mistake.

                      Originally posted by Law dude
                      This is probably a case where one size fits none and a good law dude representing either side will think twice before accepting the language of that form,

                      The agent doesn't like the fact that he wants to have a clause in there allowing him to have the contract reviewed by a solicitor. And she wants him to use one in her real estate office. Curiouser and curiouser.

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                      • #12
                        Originally posted by MJD
                        In Canada, if the vendor gets another offer, he can go to the purchaser and force him to waive the clause. That is the typical wording. In WNY the buyer HAS to sell his property to close the deal or the vendor can get out if he thinks he made a mistake.
                        That does seem absurd, doesn't it. I just spoke to a colleague who has done some RE work and who agrees that it makes no sense that the vendor could get out of the deal even if the buyer still wants to buy it (which could easily happen if the buyer is wealthy or could get the right financing).

                        Originally posted by MJD
                        Originally posted by Law dude
                        This is probably a case where one size fits none and a good law dude representing either side will think twice before accepting the language of that form,
                        The agent doesn't like the fact that he wants to have a clause in there allowing him to have the contract reviewed by a solicitor. And she wants him to use one in her real estate office. Curiouser and curiouser.
                        Preposterous and (to a law dude) offensive. But I've seen that sort of behaviour from agents. I was once advised by a real estate agent not to have an engineer inspect the house I was thinking of buying. She saw consulting engineers as alarmists who were likely to queer a deal that would generate a commission. Solicitors could be viewed the same way. The client be damned--buy/sell the house, close the deal, get paid. That's all some of them care about.

                        OK, if there are any real estate dudes out there, let me make it clear that I am not suggesting that everyone in that business thinks that way. That's by no means true.

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                        • #13
                          As I said above, the catch all clause in the agreements in this county is that the deal will close in accordance with the standard practices of the county. Whatever the hell that means. That allows all these characters down here to do whatever the heck they want. I told my brother to cross off that line.

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