Wednesday, July 15, 2009

According to contract with 90 day default period, purchaser was not in default because even though he was late,no payments were more than 90 days late

(Tenn.Ct. App. June 17, 2009).

This is a breach of contract case. Purchaser/Appellant appeals the trial court's finding that Purchaser/Appellant is in breach of the contract for sale of real property, and entry of judgment in favor of Seller/Appellee pursuant to the default provisions of the contract. Specifically, the trial court found Purchaser/Appellant in breach on grounds of late payments, failure to list Seller/Appellee as additional insured, and failure to provide proof of termite treatment. We modify and affirm on the grounds of failure to list Seller/Appellee as an additional insured and on failure to provide termite protection contract.

Opinion may be found at the TBA website:

"Under section seven of the contract, see supra, Mr. White’s payments can be up to ninety days late before he is actually in default. We have reviewed all of the checks and receipts submitted in this case, from all of which it appears that Mr. White was consistently late with his payments. But, again, the default period is ninety days under the contract. Although Mr. White’s payments are late, none appear to be more than ninety days so. From the proof, Mr. White’s November 8, 2006 payment was not made until January 12, 2007. His December 8, 2006 payment was not made until January 30, 2007, and the January 8, 2007 payment was not made until February 20, 2007. Although these payments were as much as sixty-four days late, we cannot agree with the trial court that more than ninety days elapsed between the payment and its due date so as to render Mr. White in default under the contract." Id.