208.Generally, 91 N.Y. Jur.

2d Real Property Sales and Exchanges 208

91 N.Y. Jur. 2d Real Property Sales and Exchanges 208

New York Jurisprudence, Second Edition
Database updated February 2015
Real Property Sales and Exchanges
Paul M. Coltoff, J.D.; Christine M. G. Davis, J.D., LL.M.; Russell J. Davis, J.D., Tracy Bateman
Farrell, J.D.; Glenda K. Harnad, J.D.; Caralyn M. Ross J.D.; M.A. and Kimberly C. Simmons, J.D.
X. Legal and Equitable Remedies of Parties to Agreement to Convey
A. Vendor's Remedies Against Purchaser
1. Overview of Remedies Against Purchaser
Topic Summary Correlation Table References
208. Generally
West's Key Number Digest
West's Key Number Digest, Vendor and Purchaser

254, 254(1), 296, 302, 321

A.L.R. Library

Venue of damage action for breach of real-estate sales contract, 8 A.L.R.3d 489
Treatises and Practice Aids
Dolan, Rasch's New York Law and Practice of Real Property 23:18 (2d ed.) (Vendor's remedies, generally)
Trial Strategy
Proof of Circumstances Establishing Purchaser's Abandonment of Real Estate Contract, 56 Am. Jur. Proof of Facts
3d 335
The interest of the vendor under a contract for the sale of real property is not merely a chose in action for the purchase money,
and until there is an actual conveyance of title, either voluntarily or under the compulsion of a decree in equity, the vendor retains
in the property a substantial interest that the law of the state defines and to whose courts resort may be had for protection. 1
Where, for example, the vendor owns only an undivided fraction of the property, the vendor may, while the contract is still in
existence, and the purchase price remains unpaid, bring an action to partition the premises. 2 Further indication of the vendor's
power over the land itself is found in the fact that the vendor can, while the contract is still in force, convey complete ownership
in the land to a bona fide purchaser who receives the property without notice of the contract. 3 Also, a vendor may maintain an
action for waste against a purchaser in possession if such waste causes impairment of the vendor's security. 4
Generally, a vendor of real property may maintain an action for specific performance against a defaulting purchaser 5 or may
proceed to foreclose his or her vendor's lien and free the property of the contract. 6 The court may, however, afford the purchaser
another opportunity to accept the land and receive a conveyance thereof on payment of the purchase price, in default of which
the property may at the vendor's option be sold for the vendor's benefit and the proceeds applied to payment of the purchase
price and a deficiency judgment entered against the purchaser for the balance. 7 Similarly, where the purchaser has defaulted
on a real property purchase contract, the vendor may institute an action to cancel the contract as a cloud on his or her title. 8

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 208.Generally, 91 N.Y. Jur. 2d Real Property Sales and Exchanges 208

Where the purchaser has breached the contract, the vendor is entitled to retain the down payment, or, at least, recover nominal
damages, 9 and this rule applies to a purchase made at a receiver's sale. 10 The vendor also may elect to hold the property and
sue at law for the purchase money. 11 No legal action need be taken to bring the contract to an end or to enforce the vendor's
lien. The necessary effect of the abandonment of the contract by the purchaser is to leave the title to the land in the vendor,
with the burden of the contract removed. 12
The vendor may treat the contract as rescinded, keep any installments already paid, and also keep the property or resell it for
his or her own benefit. 13
On a purchaser's default in the payment of installments in a contract wherein the promise to pay such installment and the promise
to convey are not mutually dependent on each other, the vendor may either affirm or disaffirm the contract. 14 Also, where, at
the time of closing, the vendor is ready, able, and willing to perform, but the purchaser is unwilling to perform, the vendor is
not under the necessity of making any tender of a deed in order to put the purchaser in default. 15
Where the contract provides for the effect of a default in performance, such provision serves to prevent the vendor from enforcing
any other remedy, such as specific performance or an action for damages. 16 However, a contract provision, that if the purchaser
defaults on the date set for performance the amount paid to the sellers may be retained as liquidated damages, does not weaken
in any way the seller's right to retain the part payment, which the seller would have without the agreement. 17

Footnotes
In re De Stuers' Estate, 199 Misc. 777, 99 N.Y.S.2d 739 (Sur. Ct. 1950).
1
2
3
4
5
6
7
8
9
10
11
12
13

14
15
16
17

As to specific performance of realty contracts, see 262 to 290.

Crippen v. Spies, 255 A.D. 411, 7 N.Y.S.2d 704 (3d Dep't 1938); In re De Stuers' Estate, 199 Misc. 777, 99 N.Y.S.2d 739 (Sur.
Ct. 1950).
Angel v. Methodist Protestant Church of Williamsburgh, 47 A.D. 459, 62 N.Y.S. 410 (2d Dep't 1900); In re De Stuers' Estate, 199
Misc. 777, 99 N.Y.S.2d 739 (Sur. Ct. 1950).
In re De Stuers' Estate, 199 Misc. 777, 99 N.Y.S.2d 739 (Sur. Ct. 1950).
273.
212.
In re De Stuers' Estate, 199 Misc. 777, 99 N.Y.S.2d 739 (Sur. Ct. 1950).
209.
223.
Garibaldi v. City of Yonkers, 198 Misc. 1100, 102 N.Y.S.2d 200 (Sup 1949), judgment aff'd without opinion, 278 A.D. 571, 102
N.Y.S.2d 426 (2d Dep't 1951).
220.
In re De Stuers' Estate, 199 Misc. 777, 99 N.Y.S.2d 739 (Sur. Ct. 1950).
Supreme Housing Corporation v. Schreiber, 125 Misc. 817, 211 N.Y.S. 586 (App. Term 1924); Beveridge v. West Side Const. Co.,
130 A.D. 139, 114 N.Y.S. 521 (1st Dep't 1909); In re De Stuers' Estate, 199 Misc. 777, 99 N.Y.S.2d 739 (Sur. Ct. 1950).
As to the rescission of realty contracts, see 203.
Polo Field Park, Inc. v. Chartock, 3 Misc. 2d 427, 154 N.Y.S.2d 735 (County Ct. 1956); In re De Stuers' Estate, 199 Misc. 777, 99
N.Y.S.2d 739 (Sur. Ct. 1950).
Spero v. Kobler, 245 A.D. 643, 283 N.Y.S. 791 (1st Dep't 1935).
Fishman v. Bricker, 211 N.Y.S.2d 620 (App. Term 1961).
As to the effect of a remedial provision on the right to specific performance of a realty contract, see 276.
Kaplan v. Scheiner, 1 A.D.2d 329, 149 N.Y.S.2d 868 (1st Dep't 1956).

End of Document

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.