Settle your Issues before Your Real Estate Closing in New York

A “closing” is a “closing.” When people say they are going to their real estate closing, they are talking about accepting their most expensive investment, fleas and all. If you have a problem with the home before the closing, you should bring it up before the closing, otherwise you are fore-closed from complaining.

This is illustrated by a recent case where the contract of sale provided that the property “will be delivered vacant and clean” at closing. The Seller failed to deliver the property clean, and the Purchaser had to spend $17,000 to remove storage bins, a container and other items, which should have been removed at closing.

To recover his costs, the Purchaser commenced action claiming that the contract required the Seller to deliver the property clean. The Supreme Court, Queens County, did not immediately dismiss the contract claim, but the appeals court (Second Department) reversed and dismissed the contract cause of action. Under the law of New York, the seller’s obligation to deliver the premises “vacant and clean” did not survive the closing of title because it was “merged” in the deed. By accepting the deed, the purchaser forfeited his right to enforce the contract provision–an elementary rule of law. The collateral obligation to deliver the property clean was “extraneous” to the sale of real estate and did not “survive” the delivery of title. Novelty Crystal Corp. v. PSA International Partners, L.P., decided January 15, 2008, is reported at 2008 WL 141502.

The moral of the story– communicate with your New York real estate lawyer or other professional, especially the closing attorney because you are the ears and eyes of the transaction. Your real estate atttorney does not know the condition of the property unless you discuss it with them ahead of the Closing.