Kargen v. Kerr
| Citation | 248 N.J.Super. 91,590 A.2d 255 |
| Decision Date | 24 January 1991 |
| Docket Number | No. CPM-C-112-90,CPM-C-112-90 |
| Parties | Robert A. KARGEN and Renee A. Kargen, h/w, and Frances G. Forwood and Carolyn Forwood, h/w, Plaintiffs, v. H. Brad KERR and Sarah Jane Kerr, h/w, and Stephen R. Signore, Jr., Defendants. |
| Court | New Jersey Superior Court |
Harold G. Cohen, for plaintiffs (Lesser & Kaplin, attorneys), marlton.
William J. Bryers, for defendants (Bryers & Bryers, attorneys), Philadelphia.
The question presented by this case is the effect of the failure of a realtor to include the address of a buyer in a contract for sale of realty, given sellers attempted rescission based on attorney review, wherein buyer is not given proper notice. The holding here is that seller is excused from strict compliance and rescission is allowed.
This matter comes before the court on cross-motions for summary judgment. At the time of oral argument on the motions for summary judgment, both attorneys asked the court to decide this matter without further proofs. If any issues of fact had to be decided, the court was requested to decide them based upon submissions. Not only do the parties contend that time is of the essence in arriving at a disposition of this case, but the parties also indicate that there is nothing in the way of proofs that they could add.
I have examined the submissions in this case. The facts are straightforward. Plaintiffs, Robert A. Kargen, Renee A. Kargen, Frances G. Forwood and Carolyn Forwood, are residents of Wallingford, Pennsylvania. Defendants, H. Brad Kerr and Sarah J. Kerr, reside in Blue Bell, Pennsylvania. Defendants were, and continue to be, the owners of a single-family home located at 101-34th Street, Avalon, New Jersey. That home in years past was used as the Kerrs' summer residence. In 1990, the Kerrs listed their Avalon home for sale with the Leahy Realty Organization.
On November 25, 1990, the Kerrs entered into a contract for the sale of real estate with plaintiffs whereby the Kerrs agreed to sell the property, including its contents, to plaintiffs for the sum of $475,000. The contract was prepared by J. Richard Ogen, real estate salesman for Avalon Real Estate Agency, a member of the Cape May County Multiple Listing Service. After executing the agreement, sellers delivered it to buyers for signature. Plaintiffs executed the contract on November 25, 1990. The fully executed contract was then sent by Federal Express to defendants on November 26, 1990 and received by them on November 27, 1990.
Paragraph 32 of the contract provided for attorney review. It states as follows:
1. Study by Attorney
The Buyer or the Seller may choose to have an attorney study this contract. If an attorney is consulted, the attorney must complete his or her review of the contract within a three day period. This contract will be legally binding at the end of this three day period unless an attorney for the Buyer or the Seller reviews and disapproves of the contract.
2. Counting the Time
You count the three days from the date of delivery of the signed contract to the Buyer and the Seller. You do not count Saturdays, Sundays, or legal holidays. The Buyer and the Seller may agree in writing to extend the three day period for attorney review.
3. Notice of Disapproval
If an attorney for the Buyer or the Seller reviews and disapproves of this contract, the attorney must notify the BROKER(S) and the other party named in this contract within the three day period. Otherwise this contract will be legally binding as written. The attorney must send the notice of disapproval to the BROKER(S) by certified mail, by telegram, or by delivering it personally. The telegram or certified letter will be effective upon sending. The personal delivery will be effective upon delivery to the BROKER(S) office. The attorney may also, but need not, inform the BROKER(S) of any suggested revision(s) in the contract that would make it satisfactory.
On November 29, 1990, defendants' attorney, Stephen R. Signore, Jr., transmitted by telecopier and UPS his letter of even date to John A. Binder of the Leahy Realty Organization (the listing broker) stating that, as attorney for the sellers, he found the contract to be unacceptable. Signore further stated in that communication that he required all executed copies to be returned to him for cancellation.
Plaintiffs state that they were not notified in writing within the three-day period. They contend that the notice given to the broker representing defendants did not constitute notice to them as required under the law. Plaintiffs concede that the contract did not contain the addresses of either party to the contract, but point to the undisputed fact that the realtor, J. Richard Ogen of Avalon Real Estate Agency, did have the buyers' home address and telephone number in his possession. It is further uncontroverted that no one asked Ogen for that information, which information Ogen certifies would have been provided upon request.
Plaintiffs contend that once November 29, 1990 passed without their having received notice of rescission, the contract became legally binding and plaintiffs were entitled to performance. Denesevich v. Moran, 211 N.J.Super. 554, 512 A.2d 505 (App.Div.1986) stands for the proposition that absent strict compliance with terms of the three-day attorney review clause, the contract will be enforced as written.
The decision of N.J. State Bar Ass'n v. N.J. Realtor Bds. Ass'n., 186 N.J.Super. 391, 452 A.2d 1323, (Ch.Div.1982), mod. 93 N.J. 470, 461 A.2d 1112, mod. 94 N.J. 449, 467 A.2d 577, carved a narrow exception to the general prohibition against realtors drafting contracts for the sale or lease of real property. That case provided that realtors could prepare agreements for the sale or lease of residential property containing one-to-four units providing such agreements were subject to an effective attorney review clause. If realtors failed to so limit their contract drafting activities or if they violated the requirements outlined in the case and codified in the Administrative Code they would be deemed to be engaged in the unlawful practice of law.
The date of delivery of the signed contract to the seller occurred on November 27, 1990. Although the Kerr's had executed the document on November 23, 1990 and although it was returned to them unchanged and fully executed, this court is satisfied that the time for attorney review began to run on November 27, 1990.
There is disagreement over the counting of the three-day period. Plaintiffs state that the three-day period begins by counting the date of delivery. This would mean that the three days allotted by the contract for review expired on November 29, 1990. This court is of the opinion that the date of the act or event from which the designated period begins to run is not to be included.
The language of the agreement which specifically excludes the counting of Sundays or holidays seems to track the traditional method of counting days for the performance of an act followed by the courts of this State and which is embodied in R.1:3-1. According to R.1:3-1: "The date of the act or event from which the designated period begins to run is not to be included." The holding here is that the three-day period ended on November 30, 1990. If, in fact, notice were given as provided in the agreement of sale by defendants on November 30, 1990, then defendants would have acted within the required time.
Even that interpretation of the time period which favors defendants, does not operate to bring the sellers into compliance. The mere notice by defendants to their own broker and not to buyers does not satisfy the requirement of the rule; nor can defendants, in order to discharge themselves of the...
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Sullivan as Trustee of Sylvester L. Sullivan Grantor Retained Income Trust v. Max Spann Real Estate & Auction Co.
... ... State Bar Ass'n prevented broker from receiving commission on cancelled sale); Kargen v. Kerr , 248 N.J. Super. 91, 590 A.2d 255 (Ch. Div. 1991) (interpreting the appropriate time in which the three-day attorney-review period begins to ... ...
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