The buyer and the seller agree via an addendum to move closing up one week. Thereafter, the buyer is unable to timely close escrow and submits a second addendum to extend closing to a date which is still before the original closing date. There is no response from the seller to the addendum. On the day set for closing in the first addendum, the seller leaves the title company without signing the closing documents or executing the buyer’s proposed addendum. Thereafter, the seller issues to the buyer a Cure Notice for failure to close escrow on the contractually mandated date.
1. Is the seller entitled to issue a Cure Notice to the buyer for failure to close when the seller never signed their half of the documents to allow for the transaction to close?
2. Can the buyer issue a Cure Notice to the seller for failing to sign on or before the new close of escrow date since there was no extension granted?
Only a non-breaching party is entitled to issue a Cure Notice. In this instance, it appears that the seller was ready, willing and able to tender performance on the date set forth in the applicable addendum. Since the buyer was unable to timely perform, the seller was within his rights to issue a Cure Notice. Furthermore, this scenario would render the buyer unable to similarly issue a Cure Notice because, unlike the seller, the buyer was not ready, willing and able to timely close escrow.
Arizona REALTOR® Magazine – January 2013