## Facts

- A seller agreed by written contract to sell commercial real property in Bridgeport, Connecticut to a buyer for \$1,900,000.
- The buyer deposited \$100,000 in escrow with the seller’s law firm to be applied to the purchase price at closing.
- The contract set an initial closing date 120 days after execution and allowed four successive 30-day adjournments, each conditioned on a \$15,000 payment; the buyer exercised all extensions, setting a final closing date of December 10, 1988.
- Before the final closing date, the seller learned the buyer did not yet have the funds to complete the purchase.
- On December 9, 1988, the buyer’s attorney asserted there was an error in the property description in the contract.
- Neither party appeared at the December 10 closing.
- On December 12, 1988, the buyer sent a cancellation letter citing a recorded lis pendens, an attachment, and the alleged description error.
- The contract required the seller, “on payment of the purchase price,” to deliver a full covenant warranty deed and included a mechanism allowing cancellation and return of the deposit if the seller could not convey contract-compliant title, subject to the seller’s right to cure defects.
- The escrow holder filed an interpleader action because both parties claimed the \$100,000: the seller as liquidated damages for the buyer’s failure to close; the buyer as a return of deposit for alleged failure to provide marketable title and an accurate description.

## Issues

1. Whether the seller was ready, willing, and able to convey marketable, contract-compliant title at the closing notwithstanding a lis pendens, an attachment, and an asserted description error.
2. Whether the buyer’s nonappearance and refusal to close constituted a default triggering forfeiture of the deposit as liquidated damages, or instead justified cancellation and return of the deposit.

## Decision

- The appellate court affirmed the trial court’s judgment awarding the \$100,000 escrow deposit to the seller.
- The court held the buyer was in default for failing to appear and complete the purchase on the final closing date.
- The court upheld factual findings that the seller could convey marketable title in accordance with the contract at closing, including by removing or resolving the identified encumbrances.
- The court treated the asserted description problem as a correctable defect that did not excuse the buyer’s performance where the contract provided cure mechanisms.
- Under the contract’s liquidated-damages provision, the seller was entitled to the deposit upon the buyer’s default.

## Legal Principles

- A seller seeking to retain a deposit as liquidated damages for a buyer’s failure to close must be ready, willing, and able to convey title as required by the contract on the closing date.
- Contract language requiring delivery of a deed “on payment of the purchase price” generally requires the seller to be prepared to deliver at closing, not to prove perfect title at an earlier time.
- Curable encumbrances or correctable description defects do not necessarily excuse a buyer’s duty to appear and tender performance when the contract provides the seller an opportunity to cure.
- Appellate review of the trial court’s factual findings concerning ability to convey and readiness to perform is limited; supported findings are not disturbed under the clearly erroneous standard.
- Where a real estate contract designates the deposit as liquidated damages upon the buyer’s default, and the buyer is found in default, the seller is entitled to the deposit under the contract’s terms.

## Conclusion

The court affirmed release of the escrow deposit to the seller because the buyer defaulted by failing to close after multiple extensions, and the seller was found able to convey contract-compliant, marketable title at closing despite curable defects.


Pullman, Comley, Bradley & Reeves v. Tuck-It-Away, Bridgeport, Inc., 28 Conn. App. 732, 611 A.2d 435 (1992)