REAL ESTATE - TIME IS OF THE ESSENCE

The real estate contract typically states a closing date "on or about" but there is no "time is of the essence" clause. Thereafter, either Seller or Buyer is not ready to close. That is when a a "time is of the essence" letter giving notice that the closing on the property must take place by a certain date.

DILAURO v. Johns, 2019 NY Slip Op 32328, (Supreme Court, Kings County, July 22, 2019):

"Further, the law is clearly established that even where time is not made of the essence in the original contract and the closing date set forth therein has passed, either party can declare time of the essence by giving a clear, distinct and unequivocal notice of (1) a new closing date; (2) giving the other party a reasonable time in which to act; and, (3) informing the other party that if he does not perform by the designated date, he/she will be considered in default. Nehmadi v Davis, 63 A.D.3d 1125, 1127 (2nd Dept. 2009), citing Guippone v Gaias, 13 A.D.3d 339 (2nd Dept. 1989). Specifically, the Appellate Division has held that three (3) days', Smith v Lynch, 50 A.D.3d 881 (2nd Dept. 2008), four (4) days', 3M Holding Corp. v Wagner, 166 A.D.2d 580 (2nd Dept. 1990), and five (5) days' Guippone v Gaias, 13 A.D.3d 339 (2nd Dept. 2004), notice was sufficient. The failure to appear at a closing constitutes a willful default Smith v Lynch 50 A.D.3d 881, 882 (2nd Dept. 2008)."