Time Is Of The Essence Provisions in Florida Real Estate Contracts
Case Law Summary
The insertion of the phrase “time is of the essence” is not a standard provision in a real estate contract, and time is not of the essence in a Florida contract for the sale of real estate unless expressly stated in the agreement or agreed to by the paties. Thus, when a real estate contract for the purchase of real property does not contain an express time of the essence provision, generally time will not be considered of the essence in closing the transaction.
See these cases:
- Garcia v. Alfonso, 490 So. 2d 130 (Fla. 3d DCA 1986).
- In re Mona Lisa at Celebration, LLC, 436 B.R. 179 (Bankr. M.D. Fla. 2010)
- American Somax Ventures v. Touma, 547 So. 2d 1266 (Fla. 4th DCA 1989)
- Acosta v. Anderson, 56 Fla. 749, 48 So. 260 (1909).
- Fretwell v. Crisafulli, 185 So. 2d 504 (Fla. 4th DCA 1966)
- National Exhibition Co. v. Ball, 139 So. 2d 489 (Fla. 2d DCA 1962).
- I. Kushnir Hotels, Inc. v. Durso, 912 So. 2d 633 (Fla. 4th DCA 2005).
Under Florida law, when time is not of the essence for closing under a real estate contract, a party can breach by failing to timely close only by refusing to perform after the other party demands that a closing take place within a reasonable time and place.
It is up to the parties to make time of the essence of the contract. Thus, if the contract makes time of the essence, it is not necessary for the sellers, in order to claim a default, to give either notice to the purchaser or an opportunity to close after the purchaser’s nonperformance on the closing date.
See these cases:
- Mahood v. Bessemer Properties, 154 Fla. 710, 18 So. 2d 775, 153 A.L.R. 1199 (1944)
- Realty Securities Corp. v. Johnson, 93 Fla. 46, 111 So. 532 (1927).
- Rybovich Boat Works, Inc. v. Atkins, 587 So. 2d 519 (Fla. 4th DCA 1991)
- Herrera Y Nogueira v. Helker, 139 So. 2d 895 (Fla. 3d DCA 1962).
Where time is of the essence as to the closing date of the real property sales contract, it does not necessarily imply that time is of the essence as to other dated provisions in the contract, such as the date by which a financing commitment must be obtained.
See this case: Jackson v. Holmes, 307 So. 2d 470 (Fla. 2d DCA 1975)
These issues and related cases cover most of the issues we see related to time of the essence clauses in our real estate practice. Please note, case law is always changing and, therefore, these cases should not be relied upon in any real estate contract dispute. The cases are for illustrative purposes only. We urge you to consult and/or hire an experienced real estate lawyer as each case is unique.
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