default

There is virtually no chance of a court awarding specific performance. Specific performance is awarded very very rarely, as courts generally don't like forcing people to do things.

Do you have a liquidated damages clause?

no clauses regarding damages.

> It took a long time but the seller we are in contract with is definitely defaulting.

if the guy is defaulting on recourse debt, woudldn't your claim come after his current debt gets settled?

defaulting on an apartment sales contract, not debt. The seller is defaulting.

was there a broker involved? what does the broker advise. I would think long and hard before initiating any law suit. It is costly and emotionally draining. It is only worth it if you are recovering a significant monetary loss -- which is not the case here. I feel your pain but I think this belongs in the live and learn column. Go find another apartment -- or rent for awhile-- and next time make sure you are protected.

This happened to us once, many years ago. Very sleazy seller (now in federal prison for the rest of his born days) -- we caught him at the beginning of his career as a pathological liar. I told the brokers we weren't going away and they pretty much bashed his brains in (figuratively speaking) and then we closed. They didn't want their commissions going down the drain and were very motivated to make it happen. So where are the brokers in this deal and what does your attorney say? Has anyone actually told you the seller is defaulting? Also, it's unusual to sign a standard contract without some kind of damages clause, so ask your lawyer about it.

The sellers broker/firm is going to sue her for the commission. Not sure if our broker has any rights to his commission. Our attorney thinks we might win a specific performance but not sure how long and painful it will be.

Specific performance is a routine remedy, but to qualify you have to have upheld your end of
the contract perfectly.

There are differences between coops and condos. Condos are real property. You can prevent resale
while your lawsuit is going by filing a lis pendens. You cant file a lis pendens on a coop because
NY coops are personal property under state law.

That leaves you with the option of filing suit and seeking an injunction against sale while your
suit is pending, or trying to tie up the stock transfer agent under Uniform Commercial Code section
8-401(a), which is not yet a customary practice.

How routine is specific performance? Is there
Any way to expedite it?

If you have a 100% clean case with documents that clearly support specific performance
you can move by order to show cause to compel a closing.

But your case needs to be solid, and presented in as simple a manner as possible, with
a minimal amount of he said/she said, for example:

1. on ____ date, defendant contracted to sell ____ to me for ________________.

2. as early as ____________ my attorney informed defendant that I was ready, willing able to
close, and that all the things I needed to do to be able to close had been done or were
ready to be done at our closing.

3. defendant has since then refused to close, and has engaged in the following acts which
indicate he/she doesnt intent\ to close.

4. Based on the above,I ask that the Court grant me specific performance and set a time and
closing, or a range of dates.

This is a suggesred skeleton affidavit. You will need to support your factual statements with
documentary evidence including your contract, loan commitment if any, coop/condo board approval
if any, proof of funds to close, and letters to and from your seller showing his/her intent not
to close. Supporting afffidavits from the brokers would also be helpful.

If you dont know a competent attorney to do this, let me know and I will give you the number of
one of my friends.

co-op or condo? Are you board approved?

ali r.
DG Neary Realty

yes approved. co-op. official default letter today.

rb345 thanks for the advice. assuming we satisfy all the requirements above, do you have any experience on how long this can take? thanks

Also, hows this for irony-the seller happens to be a real estate broker and is defaulting on a real estate contract.
Do brokers ever get their licenses revoked?

I wonder what the realtors here think. Might contacting the agency where this seller works help the situation? I guess I'm thinking something along the lines of peer pressure. "You're doing WHAT?!?"

hmm.

I'm not an attorney, nothing I say should be construed as legal advice.

But IMHE, there are two causes of foot-dragging. One is that you're dealing with a married couple that doesn't have a united front, so you experience a start-stop effect depending on which spouse has the wheel. From that couple's POV, hacking you off is still probably preferable to heading to divorce proceedings.

The second is that you're dealing with a seller who has another transaction, and you're experiencing that skid with the brakes on because they're trying to slow the timing of this transaction to match the other one. From that seller's POV, hacking you off is something that he/she/they think they can cure when their other transaction's timing lines up.

I have some strategic thoughts, but I'm not so sure I want to share them in public, and they're partly dependent on whether you think you're dealing with counterparty situation #1 or situation #2. UES, you can email me (or your broker can email me) at ali {at} dgneary {dot} com at your convenience.

Just put "streeteasy" in the subject line so I can find it.

ali r.
DG Neary Realty

Ali-
Neither is the situation (I currently live in the building so I know the person). Simply think it was a change of heart after signing the contract almost three months ago. No guarantee though that there is not another transaction in the wings but I don't believe that is the case-We were paying asking.
drdrd-its the sellers ex brokerage firm that is planning on suing for the commission. I believe her lawyer was contacted regarding this as a certainty.
The whole thing is complicated by the fact that we are buying the adjacent apartment to combine.

Are you in the adjacent apartment now and buying her apartment to combine? Or buying two apartments in your building to combine? Real estate is not my area of law, but it seems to me that if the seller/broker knew another sale depends on her sale to you, getting specific performance is more likely. I might try for an injunction as a first step.

This is a terrible situation for you. You have my sympathy.

Hi
Thanks. Buying two other apts in our building. Different floor. Its a mess. The seller knows b/c there is a cross contingency clause in the contracts. They didn't sell together b/c they dislike each other.

ues-shopper, if this is your next door neighbor's apartment, specific performance just became very likely. You might need another lawyer though. Most paper pushers have no experience or desire to litigate, and that may color their advice. You need to meet a couple of litigation lawyers with your paperwork, and get proper advice.

Again, not my area of expertise -- but if the seller knows that by defaulting it will cause you to default on the other transaction, I can't see a court not granting specific performance. I agree that you need a litigator with NYC RE experience and fire in the belly.

I also think the people of New York State should eventually be protected from this broker (as a broker) in the future, but your first concern has to be getting yourself into those apartments.

I'm not a lawyer, and I would consult with a lawyer, but I think you're going to win this one too.

I think this is not-cool behavior for a real estate professional, and that the next step down real estate road might be to contact the seller's manager/sponsoring broker (if he/she works at a firm) or one of the relevant trade associations (i.e. REBNY, MANAR) if he/she is simply an LREB.

ali r.
DG Neary Realty

What is going to be the situation with the other sale? Say you sue for specific performance on the one guy, you spend a bunch of time in court hashing it out. Is the other contract just going to sit around? Or has the default on the one contract triggered an out in the other contract?

My point here is that if you sue for specific performance, how will you know that you'll still want the performance by the time it gets hashed out in court? Obviously, the wording in your contract and/or a lawyer should guide you here.

But, if I were the other guy, and I knew the court proceedings could be dragged out to a point where you'd lose the other apartment, the I'd be pretty happy if you sued for specific performance since it would likely end up giving you the Pyrrhic victory of having to close on an apartment you no longer really want.

"I think this is not-cool behavior for a real estate professional, and that the next step down real estate road might be to contact the seller's manager/sponsoring broker (if he/she works at a firm) or one of the relevant trade associations (i.e. REBNY, MANAR) if he/she is simply an LREB."

In general, I don't see how talking to the manager is useful. Presumably, the manager is already exceedingly aware of this broker's sleazy nature. And isn't the power/desire of the trade associations a joke? In this particular case, making noise to the manager is particularly useless. If I'm reading UES correctly, the seller is a broker who is being SUED by the firm they just left for the commission. They already know and are on the same side of the issue as UES. Furthermore, I'm pretty sure pissy calls have already been made to the selling broker's new firm.

Here's the thing. Suppose this is a $1M apartment. The seller's brokerage firm is losing out on something like a commission split of 1%, or $10K. If they're willing to lawyer up for a sum that small, I gotta figure they think the chance of success is pretty high. And I also gotta figure your claims are easily 10x higher than theirs.

Nada, there are two levels of real estate enforcement: one is within the industry, and the other is outside: the Department of State, which has the power to revoke licenses and levy fines. (which answers UES' question).

I don't know that the first level is a "joke" because I've never been involved in something like this -- (and I suspect, neither have you) -- but it is a smaller town than you'd think and I wouldn't want an entire firm mad at me. If I were in a situation like UES, where I wanted X, and I thought that a firm wanted the same thing, I would certainly talk to them to coordinate efforts towards X if nothing else.

ali r.
DG Neary Realty

We are considering all options. The other seller (adjacent apt) is now
Reluctant to return our deposit even though it is in the contract that if one
Sale doesnt go through then the contract is voided and we get our
Deposit back. She might be interpreting it though that we have to do
Everything to enforce the other contract Inc suing for specific performance. But then she would
Have to agree to not sell it to someone else(she is still in contract with us technically) while the suit
Is going on. She has in fact relisted her apartment yesterday so I am not sure what will happen.

"She has in fact relisted her apartment yesterday so I am not sure what will happen."

Wow, not returning the deposit but also relisting the apartment? I wish I could give you a good referral to an attorney, but all the old guys I used to know don't practice anymore.

Today we found out that the defaulting seller had changed her mind in December, and supposedly told her lawyer that she did not want to sell, after having signed the contract. However her lawyer had not told us this news. Everyone has gotten dragged into this for 3 more months, and it finally legally defaulted two days ago. The defaulting seller is claiming bad communication and miscommunication of the facts about her real intentions, therefore blaming her own lawyer.

"The defaulting seller is claiming bad communication and miscommunication of the facts about her real intentions, therefore blaming her own lawyer. "

Sounds like a bunch of crap. If that were true, where's the deposit she should've given back a long time ago and why didn't the next-door neighbor know? Ridiculous. I'd love to hear what her lawyer has to say about who's at fault and why.

What's the name of the defaulting seller?

FP, with all due respect, the idea that REBNY would do anything here is idiotic. This action is being taken by the seller as a seller, not as a broker. Its resolution belongs in a court of law, not some trade association. The stupidest thing they could do is take an action as it would expose them to a lawsuit. Putting that aside, though, have you ever known REBNY to take some real action on anything? I haven't, but I'm not in the industry, though I suspect if they ever did anything interesting, I'd have read about it.

UES: Maybe you and the other seller get on the same page? Either decide to go down the road of specific performance together, or go down the road of damages together.

Or perhaps a stick instead of a carrot: remind the other seller that the deposit is due back, and you will fully pursue your right to legal interest at 9% if it isn't returned promptly.

Thanks for all the suggestions. We are going to have to decide what road to take today-either specific performance or damages. Need to straighten things out with the other seller and work in tandem if possible.
I agree with the general-don't believe that she changed her mind in December and just didn't notice that the deposit wasn't returned. Bottom line is that for whatever reason she feels entitled to walk away and cancel a contract. I think that these contracts have very little bite.

I wonder if they do have very little bite but you also need to consider your options, the costs in time & money & the possible outcomes, including worst case scenarios, before deciding how to proceed. I still think trying to spread a stink in the real estate community is something to consider. Bitch just shouldn't be able to get away with this.

A contract is a contract -- it's the basis of The American Way. We don't like to allow people to dishonor their contracts because doing so undermines the whole enchilada. Seller would be held to a higher standard because she's a real estate agent and, presumably, should understand what a contract for sale means.

Very idealistic of you. I don't have as much confidence in the legal system right now. The time and costs of enforcing the contract might be daunting and there is no guarantee we will prevail.

Very understandable. It feels different when your life is on fire.

UES:

If you serve your Coop managing agent with a copy of your contract and a latter
stating that you intend to seek specific performance of your contract, and demand
in your letter that the Coop inform any prospective purchser of your apartment
of your contract and intent to sue, you can probably prevent resale of the apt.
until a court rules.

Since the apt is adjacent to yours, you have no adequate remedy at law as that
term is understood in legal parlance, which increases the likelihood that you
will win if you seek specific perfrormance. And if you have a special timing
reason to need to close quickly, such as pregnancy or expiring loan commitment,
\many courts will expedite your case.

Thanks RB. Our loan lock-in has already expired and we are paying day by day to extend it. We are trying to sort things out. For clarification we are trying to buy two adjacent apartments right below the current apartment we live in (same configuration planned). My parents are planning on moving into the apartment we currently live in (they had planned on moving in this spring). For ease sake lets say we currently live in 13 f&g that have already been combined. We are trying to buy 12 f&g. No duplex planned at this time. The smaller apartment is 12 f.That owner has already put her apt back on the market but has not returned our deposit. There is a cross contingency clause in the contracts that state 'for any reason' if one or the other doesn't close we get our money back. Not sure how that is open for interpretation but I am not a lawyer. So not sure if we are going to be compelled to pursue specific performance, depending on the interpretation of that clause. We have gotten the names of a couple of lawyers but the costs are probably going to be high b/c the hourly fees range from 350-525. The fees would be OK (up to a certain point) if this was a sure thing and not going to drag out. Unfortunately there are no guarantees.

ues-shopper, it is time for you to hire a litigation lawyer. Rb is right, there are things you need to do to assert your rights. You tried to negotiate in good faith, but you are dealing with unreasonable people. That's why courts exist.

I'd say start today to find a good attorney who can figure out all the contingencies for you. Don't get yourself crazy by trying to figure it all out yourself. It is my belief that you will prevail in the not-so-long run. This is why we have laws. Otherwise, you could make her leave with your AK-47.

Have the names of a couple of litigators-have to interview them. Both were rec by our lawyer.
Still have not heard from the attn of either apt.

UES:

I can check with one of my attrney friends who is an expert in real
estate and full-time litigator. His rates are a lot lower. Let me
know if you would like me to.

He can do a preliminary review of your paperwork very cheaply.

Thanks RB. That would be great.

UES:

Will check and let you know,

"The fees would be OK (up to a certain point) if this was a sure thing and not going to drag out. Unfortunately there are no guarantees."

Well, let me say something so as to encourage you to assert your rights. Suppose you decide not to pursue specific damages or a lawsuit due to the uncertainties. At that point, you should be willing to have a third party front all the fees and somehow split damages awarded should you prevail. I know little about the specifics of the contract, less about the law, and nothing about litigation. However, should you come to a point where you decide you don't want to go after it because of the uncertainties, please let me know as I would seriously consider setting up such an arrangement.

UES:

Spoke to my friend Stan. Said he would be very happy to meet with you.
Bring copies of all relevant documents with you: contract of sale,
letters, e-mails, faxes, notices, loan commitment, board approval.

His fee for an initial consultation wont be high. The first step is
to sort out relevant facts. Nost important among them is to figure out
what defenses to performance your broker-seller tried to set up her
correspondence with you, to assess if they exist and how strong they
are. Allow Stan until Monday-Tuesday to review your documents carefully
if he needs the time.

If your case is viable he should be able to file it sometime next
week. His direct line is 212-226-7002.

Best wishes for a successful outcome.

Thanks rb. I'll call.

Small update-the studio apartment owner has in principle agreed to return our deposit but so far we haven't received it. The defaullting seller still has not proposed a settlement or bothered to return our deposit. Infuriating! She is maligning her lawyer but has not yet fired him-wonder what really is going on there.

UES:

In my business we read a lot of tea leaves and extract what we can. Sounds like her
attorney has told her something she doesnt want to hear, specifically, that she's in
the wrong and has to close with you. You owe it to yourself to pursue your claim, at
least to the extent of assessing its viability.

UES:

1. market prices look poised to increase
2. that's why your seller is repudiating
3. sellers dont renege on contracts after prices have gone down
4. broker might already have higher offers
5. replacing what you have lost will cost you more money
6. the apartments may be somewhat more expensive
7. an duplicate fees
8. dont just give up

If it were me, I would not talk anymore to the sellers until you've talked to an attorney and learned what your true options are. I wouldn't let the second seller think I was giving up on the deal yet, either.

Have an attorney but he is not a litigator but have discussed it with a
few and am ready to retain one. Our lawyer is the one who has been trying in vain to
settle this but cannot seem to get any satisfying
answers this forcing us to sue for either sp performance and/or damages.
RB I think you are right in that she doesnt want to hear that she might
Be responsible for a lot of damages.

UES:

1. New York allows punitive damage claims for bad faith breach of contract
2. I realize that the prospect of suing is distressing and daunting for you
3. from what you have written your seller might be ready to fold with just a good shove
4. serving a complaint is cheaper than also bringing a motion
5. why dont you have a strong complaint served on your seller
6. or at least threaten to sue including punitive damages if she doesnt schedule closing ASAP
7. remember what Mark Twain said about being hung: there's nothing like the prospect of
being hung in the morning to concentrate the mind

The hanging quote is Samuel Johnson, actually. But I agree with rb, I think if you push thru you will win this one.

ali r.
DG Neary Realty

DO something. It's been 9 days since you've been dithering on StreetEasy. Time is of the essence. DO something already.

Tomorrow the litigator will start. Been strung along for days, promised that a settlement proposal was coming. I should have known better. Still don't understand why our deposits have not been returned. Now it will get ugly as well as costly (which would have been better to avoid).

You have a better claim for being awarded costs in the end than most people. It's good that you made a last-ditch good-faith effort to settle. Good luck tomorrow and let us know how it goes.

Update.
Seller's lawyer fired her. The lawyer supposedly mailed a check to us more than a week ago but nobody has seen it. Now she has no lawyer for us to deal with and wants to speak directly to the litigator.
She also now claims that she didn't authorize the appraisal to be done.

Update.....
Still have not seen a cent of either deposit check yet-but we hear one of the checks is coming soon and not the one from the person who defaulted. In fact no word at all from her at all. No offer to return the deposit and no offer of a settlement. Not able to take responsibility for her actions. Will have to pursue this although costing a lot. I can't believe there is no method to settle this without suing. The system is horrible.

I believe lawsuits are the method to remedy civil disputes. I'm not sure what else you expect in a breach of contract situation. What alternative system would you prefer?

Just remember to tax the owner for the troubles: all litigation costs, damages that more than cover your trouble and losses.

Question: when did the owner buy, and how much equity is in the home?

inonada:

Unless a contract or statute provides that the losing party in litigation
must pay the winning party's legal fees, the winner cannot recover them.

And you just cant make up damage claims; they need to have some basis in
legal rules

I missed your post about the seller's lawyer getting out. Not surprising.

You could ask her to go to mediation. Having mediated at least a thousand commercial cases over the years, I can tell you that it will be faster and cheaper but you will not recover everything.

You could suggest arbitration -- maybe with the American Arbitration Association. Their fees have been climbing and unless you have rules limiting discovery you might as well be in court, but it would still be faster and cheaper than going to trial. Based on the facts you've posted, and my experience of arbitrating more thousands of cases, I think a commercial arbitrator would find in your favor. If your attorney knows an arbitrator he or she trusts, you can adopt the rules of an arbitration-providing service (like AAA), have the attorneys do the administrative chores and use someone's conference room for the hearing. That would bring the costs down. If she didn't comply with the arbitration award, you would have to go to court to enforce it. Arbitration is an alternative you might want to talk about with your lawyer.

An advantage to this seller of alternatives to court litigation is privacy. You could remind her that her career as a broker could be harmed if she goes to court and this all comes out.

I hate to see your deal go down the drain. Is it just a question now of getting your deposits back and having her cover the damages or is there still a possibility you could buy the apartments?

You seem to be dealing with someone who thinks there are no consequences. Once it gets more legal, she may be "scared straight." It also sounds like maybe she has no money and has used your deposit. She may not be able to afford an attorney right now, Having to proceed pro se will be a sobering experience for her.

Good luck -- I'll make sure to look for your posts from now on.

The seller's lawyer has your money in an escrow account. The seller does not have possession of the cash. Your attorney needs to communicate the "time is of the essence" concept, bscked up by a phone call and if necessary injuctive relief to prohibit the seller from entering into ANY other contracts to sell (similar to having a lien on the property). Once the seller gets the concept then you can consider filing for a money judgement to recoup your costs plus interest. Arbitration is such a pleasnt term, but the seller's attorney and the seller are not nice, honest people who have made a minor error in judgement .These folks are class A assholes. In the meantime, you need a better lawyer yourself and a different property.

I'm sure you're right, rb. For some reason I thought legal costs could be at the discretion of the judge based on a few cases I read on a specific topic, but perhaps that was in the statute. But I imagine reasonable people can disagree on appropriate damages. I get the sense that ues_shopper may find herself erring on the wrong side of reasonable. I think she needs to go thermonuclear, but she seems to be pussyfooting around the problem based on her language here: "no offer to return the deposit", "no offer of a settlement", "take responsibly for her actions". Responsibility for her actions??? WTF, is this kindergarten? She seems so afraid of confrontation on the issue that she is disadvantaging herself.

Look ues_shopper. This A-hole isn't going to behave reasonably. You need to force her to do so. If this person wanted to get out of the contract in a reasonable manner and take responsibility for damages caused, she would have come to you with an offer months ago. Instead, she took a crap on you, and you're trying to get her to sit at a table with you to "discuss" it. Who cares? Screw your litigation costs, can you imagine how she's gonna feel paying the same costs and then losing and eventually having a lien placed on the apt? The time for discussion has long been over. Months ago. Now is the time for action. Just make sure there are assets to get to after you win the lawsuit.

No lawyer, here, obviously, but my thought is that, if the seller's lawyer had the deposit in an escrow account, wouldn't it have been returned by said lawyer after she "fired" the client? Also, I've always heard that it's one thing to get a judgment against someone, quite another to actually collect it. It does appear that ues is far too genteel & that possibly their lawyer is, too. This looks like it could get loooooong & messy & costly & just horrific. Thoughts?

drdrd/ionada:

1. an attorney holding escrow is a fiduciary fo all parties with an interest in the sscrow
2. that means the funds cant be releasad without the consent of all parties or a court order
3. that the down payment is in escrow means that a judgment can be enforced for its amount
4. legal fees are often recoverable by tenants in L&T court per Real Property Law sec. 234
5. and sometimes in all courts as bad faith litigation sanctions under 22 NYCRR section 130.1-1
6. in UES case, possibly under disparagement or slander of title, which is a common law tort
7. and maybe punitive damages for bad faith breach of contract per Hirschfeld v. Aero Garage

"You seem to be dealing with someone who thinks there are no consequences"

This is the essence of the problem. We have made attempts to settle out of court but absolutely no response. The sellers lawyer did not return the deposit when the seller defaulted which is beyond crazy in my opinion. The deposit is in escrow but her lawyer has not been 'instructed' by her to return the money. We have a deadline now but are most likely going to file papers this week. I would like in my heart to really go after her and force her to spend money on litigation too but there there is no guarantee that we will get anything back more than the deposit (which i am going to assume will eventually be returned). I don't think the deal is even a possibility at this point unless the studio doesn't sell too fast and is still available.
Thanks for the suggestions. I will d/w our lawyer arbitration and mediation but I think this person needs a rude awakening and won't respond to anything less.

I have nothing to add at the moment but a general expression of sympathy. What a giant drag that you were forced to go through this as you were trying to build your home, and may you have plainer sailing ahead.

ali r.

Is this person still a realtor? Ali would have a better feeling on this, but trying a rude awakening via her RE agency & colleagues might be worth a try?

Her lawyer can't do anything with the escrow account unless she tells him to do it. He can lose his license for using it even to do the right thing. My guess is he decided to bail when she wouldn't tell him to return the deposit. It's a big thing for a lawyer to fire a client and it says a lot.

I agree that you have to make some consequences for her bad actions. I don't understand -- but you don't have to explain!! -- why you would not try to get specific performance on both contracts. I can't see a judge not giving you an equitable remedy, and quickly. I am guessing your lawyer has his reasons for not doing that.

I might also consider going after her RE license. I wouldn't even bother ratting her out to her agency and colleagues. It may be a good threat before things have broken down irrevocably. Once there is no chance of settling, there's no point in not doing it and you would be doing everyone in New York a big favor. But first things first -- you have to do what's best for you before anything else.

It has also occurred to me that your seller could be reading these posts. The details of your situation would be recognizable to anyone involved. So I vote for you not telling us your strategy until you've made your move. :) But I will keep checking for your posts to see what's happening and try to be of any assistance I can.

UES:

1. since I first posted here a Coop where I own threatened to repudiate its long-term recog-
nition of my apts as unsold shares, obstruct my sublet of one, and physically prevent my
workers from working in my apartment because they are not licensed or insured, as workmen
in non-Sponsor coops must be.

2. the situation quickly escalated and got very nasty
3. but I cited them to several of the cases and legal rules mentioned here
4. and the matter resolved without my even needing to go to court

Moral of the Story:

If you lie on your back with your arms and legs fully extended you are not
going to get what you want.

RB things are getting going albeit slowly. Thanks for the cases. Let me know if anymore come to mind. Per the
General no more strategy.
As far as the real estate firm she used to work for-that is the one who was selling her apartment so they know what she is doing.

Update
Got the deposits back-the studio Wednesday and the other apt this afternoon (defaulting seller). No other response from her though.
Glad to have the deposits back.

I'm glad you got the money back, but sorry about the deal that fell through. It will be interesting to see if she's selling the apt to someone else. I can envision some frosty future elevator rides if you're all still living there.

good deal UES. good commenting.

Some closure.
After almost 11 months this case was finally settled. We got our expenses back. The studio was sold to someone else. We will never get the time back and the anger and frustration that this has caused is priceless.
IMO very big flaw in the legal system. Contracts mean nothing unless you are willing to pay a lawyer to back up claims that had already been outlined clearly in the contract. We did not want to 'throw good money after bad' and pursue this further.

Entering the legal system is never a happy experience. But I do not understand what the flaw is. A contract obviously is not self-executing: the parties have to execute it. If one does not, there is not a vigilante squad of contract enforcers you call unless you are connected to something I wouldn't be writing about on a public forum. Because of the nightmare that litigation entails, various clauses can be inserted into contracts to "encourage" the parties to perform and to avoid litigation. For example, it is not uncommon in many types of contracts for there to be a clause that the losing party must pay the other's legal fees. That clause alone terrifies many into compliance as soon as they get a letter from Sullivan & Cromwell or Davis Polk where attorneys collect between about $600-$3000 per hour. There are also clauses that keep things on a tighter schedule such as "time is of the essence" clauses which do not permit alteration of closing dates (and the parties are free to insert penalties if they wish).

In short, parties are free to craft as tight and strict a contract as they desire to better insure compliance, performance and potent disincentives to breach.

UES, you had this offer from me which you ignored.

"Well, let me say something so as to encourage you to assert your rights. Suppose you decide not to pursue specific damages or a lawsuit due to the uncertainties. At that point, you should be willing to have a third party front all the fees and somehow split damages awarded should you prevail. I know little about the specifics of the contract, less about the law, and nothing about litigation. However, should you come to a point where you decide you don't want to go after it because of the uncertainties, please let me know as I would seriously consider setting up such an arrangement."

I am guessing the apt was sold at a higher price to the other party. You and I could have probably been enjoying the difference right about now.

UES, why bad things happen to good people is a philosophical and religious conundrum, but you seem to have experienced first-hand that they do. Someone willful who didn't want to play by the rules got her way, and you got gob-smacked in the process.

All I can offer are the usual sops: 1) thank heaven it wasn't worse. It was your time, but not your health .. and now it's behind you. and 2) you have the empathy of the community as we were all pulling for you. Maybe that reaffirms some of your faith in human nature.

ali r.

>I know little about the specifics of the contract, less about the law, and nothing about litigation.

So the other week when you were giving dead certain advice to someone and encouraging this person to litigate a partially unreturned move-out deposit, and when you made statements about how this person could additionally "immediately" recover via "court precendent" retroactive penalty interest - all based on what you called the "civil equivalent of stealing your money ("conversion")" ...

you were just talking the hot air equivalent of "hey buddy, you don't want to be on my shit list",

because as you acknowledge, you know less than little about the law and nothing about litigation, right?