Tuesday, September 16, 2008

Real Estate in Jamaica - Time of the Essence

If anyone is going to insist on time being made of the essence in a contract for the sale or purchase of land, it is likely to be the vendor who wishes to get his cash as quickly as possible. However a vendor must also be able to complete by the stipulated date when time is expressly of the essence and there are cases when completion is actually delayed due to the fault of the vendor. I have seen contracts where time is of the essence in respect of the purchaser’s obligations only and I wonder who would agree to sign that. Not me. If time is made of the essence in the contract it must be mutually binding. Personally however, I prefer contracts which exclude any reference to time being of the essence.

What is time of the essence?

Vey simply, when a date is set for completion in the contract and time is of the essence, that means that the completion date is final. Thus if one of the parties fails to complete then he is exposing himself to a suit for breach of contract.

Where there is no express provision that time is of the essence, equitable principles state that the parties may be allowed a reasonable time, after the specified time period, within which to complete the sale. In practice therefore where time is not expressly made of the essence of the contract and a reasonable time after the completion date has passed, a notice to complete making time of the essence can be served by the innocent party on the delaying party giving him further time to complete. If the delaying party fails to perform by the date stipulated in the notice then he must face the consequences which can be very costly indeed. Many a purchaser has lost his deposit and faced further legal action as a consequnce of this failure. As they say: time is money.

It is important to note that anyone who serves a notice to complete making time of the essence must be ready, willing and able to complete himself. Otherwise his notice could turn out to be not worh the paper it is written on.