You Wanted a Toilet in Your Condominium?

The Utah Court of Appeals, in an opinion last week, came out with a rather absurd result in a dispute between a condominium developer and unit purchaser.

The case, Flores v. Earnshaw, involved Mr. Seadhna Flores’ purchase of a yet-to-be-built condominium unit. Mr. Earnshaw and Mr. Flores both signed a Real Estate Purchase Contract (REPC) which called for a purchase price of “$144,950, less the $10,000 previously paid when Flores had exercised the earlier Option Agreement.” About a month later, Earnshaw called “to express concern about the selling price…” Earnshaw sought to revise the contract to increase the price of the unit to $179,950; Flores rejected this offer, and ultimately sued, seeking specific performance of the contract.

Following a trial, the trial court decided that the contract was ambiguous as to whether the parties intended to convey a fully built-out unit, or just a shell of a unit. The court found that the form language in section 1.l was ambiguous, and considered evidence outside of the contract to ascertain the parties’ intent. The court thus ordered the sale of a fully built out for $144,850. Earnshaw appealed.

The issue addressed by the Utah Court of Appeals involved whether or not the trial court was correct in allowing and considering the evidence outside of the contract. Ultimately, the court concluded that the court could only look to the contract to determine if it was ambiguous; it the contract itself did not appear ambiguous, the extrinsic evidence should be excluded. Looking only at section 1.1, the court found no ambiguity. Unfortunately for Mr. Flores, that section called for inclusion of “plumbing, heating and air conditioning fixtures, and equipment; ceiling fans; water heater; built-in appliances; light fixtures and bulbs; bathroom fixtures; curtains, draperies, and rods; window and door screens; storm doors and windows; window blinds; awnings; installed television antenna; satellite dishes and system; permanently affixed carpets; automatic garage door opener and accompanying transmitter(s); fencing; and trees and shrubs,” only to the extent that they were presently owned and attached to the property. Because none of the items were “owned and attached” as of the date of the contract, the court found the language unambiguous, and held that the admission of the extrinsic evidence was improper. Thus the court remanded the case (sent it back to the trial court) “for further proceedings consistent with this opinion.”

This is, obviously, an absurd result even if the case was decided correctly pursuant to evidentiary rules. There is no doubt, when the extrinsic evidence is considered, that Flores was expecting to buy, and Earnshaw originally intended to sell, a completed unit, with toilets and appliances. The court noted that the parties (and presumably the real estate agents, erred by using an REPC for completed construction. That fact, while true, is of little consolation to Mr. Flores.

The appellate court gave a few hints, and possible solutions, to Flores, in noting that the existence of an ambiguity can be found by reviewing the “contract taken as a whole.” Furthermore, the court noted that the parties had not argued “mutual mistake, reformation, impossibility or any other theory to support their positions.”

At this point, Mr. Flores and his counsel have the option to ask the Utah Supreme Court to review the Court of Appeals’ decision, or they can try to get the trial court’s reconsideration as to whether the contract, as a whole is ambiguous; Mr. Flores and his counsel could also seek to pursue some of the other theories suggested by the trial court. That may or may not be successful, depending upon the posture of the case.

This case should serve as a reminder of several things; the need for the assistance of competent advice in the purchase of property, the need to deal with an honest and reputable builder, and the need to carefully evaluate and pursue all legal options and theories when everything else fails. Although I had no familiarity with the case prior to last Thursday, (when the opinion was issued), I strongly suspect that the attorneys fees incurred by both both parties likely approached or exceeded the $35,000 difference in the original and proposed purchase price. And now, they get to go back to the trial court to fight some more.

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