In short: The seller lost. In M & S Investment v. Wynwood Propco, a cash warehouse deal with a time-of-the-essence clause missed its closing date when the buyer’s lender balked over one misplaced guarantor signature. The trial court ordered specific performance for the buyer, and the Third DCA affirmed without opinion in 2014.
The Facts
The Third District affirmed without opinion, so it made no findings of its own. What follows is what the record and the parties’ arguments showed, as described for the oral argument.
The deal was a cash purchase of a warehouse in Miami’s Wynwood district. The contract had no financing contingency, said time was of the essence, and set closing for September 28, 2012. On closing day the buyer’s lender would not fund because one guarantor had signed on the wrong line. The seller, M & S Investment, did not arrive until about 3:30 that afternoon and then asked for late changes to the closing statement. The closing did not happen that day.
The buyer, Wynwood Propco, sued for specific performance. After a bench trial, the trial court ordered the seller to convey. On appeal, the seller argued the buyer was never ready, willing and able to close on the deadline. The buyer argued the seller’s own last-minute conduct waived strict compliance with the closing date.
The Decision
The Third District issued a per curiam affirmance with no opinion. That means the trial court’s order of specific performance for the buyer stood, and the seller had to go through with the sale. It does not tell us why. The panel may have agreed the seller waived strict timing, deferred to the trial judge’s findings about who was ready to close after hearing the witnesses, or rested on another ground.
A PCA is not precedent. It does not hold that a buyer’s lender problem is excused, or that a seller’s late arrival always waives a time-of-the-essence clause. It shows only that, on this trial record, the seller could not get the judgment reversed.
The Law
Whether time is of the essence in a Florida real estate contract is a matter of contract law, not statute. When the contract says so, a party who misses a deadline without excuse is generally in breach and the other side may terminate. But the clause can be waived, by words or by conduct, when the party relying on it acts in a way inconsistent with insisting on strict timing, such as showing up late, changing terms at the last minute, or continuing to work toward closing after the deadline.
Specific performance is an equitable remedy. The buyer must show a valid written contract (see section 725.01) and that it was ready, willing and able to perform, meaning it had the money or financing in hand or could have closed but for the seller’s conduct. A cash deal with no financing contingency puts the funding risk on the buyer, so the buyer usually has to show the seller’s conduct, not its own lender, caused the failure. Those are fact questions, and an appellate court rarely second-guesses a trial judge’s findings on them.
Lessons
- A time-of-the-essence clause protects only the party who honors it. A seller who arrives late or reopens terms on closing day risks waiving strict timing.
- Buyers in a no-financing-contingency deal should have every lender document checked, including guarantor signature lines, days before closing.
- If a deadline is slipping, put any extension or reservation of rights in writing before the deadline passes.
- Specific performance cases are won on trial facts. Testimony about who was ready to close, and when, usually decides the case.
Source: M & S Investment, LLC v. Wynwood Propco, LLC, No. 3D14-440 — Fla. 3d DCA (September 17, 2014).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Wynwood Closing Missed Over One Signature — Time of the Essence? | M&S v. Wynwood, 3D14-0440
Go Deeper
- How Appeals Work in Florida: The 30-Day Deadline, Costs, and What a PCA Means
- Can You Sell Your House During Foreclosure in Florida? Yes, and Often You Should
Frequently Asked Questions
What does time is of the essence mean in a Florida real estate contract?
It means the deadlines are strict. A party who misses the closing date without a valid excuse or written extension is generally in breach, and the other side may cancel. The clause can be waived, though, if the party relying on it acts as if the deadline does not matter, for example by arriving late or demanding last-minute changes.
Can a seller's conduct waive a time-of-the-essence clause in Florida?
Yes, it can. Florida courts recognize waiver by conduct when a party acts inconsistently with insisting on strict timing. In M & S Investment v. Wynwood Propco, the buyer argued the seller waived it by arriving late and seeking closing-statement changes. The trial court ordered specific performance and the Third DCA affirmed without opinion, so no rule was announced.
Can a buyer get specific performance if its lender did not fund on time?
Sometimes, but it is hard. The buyer must show it was ready, willing and able to close and that the seller’s conduct, not the buyer’s own financing problem, caused the failure. Whether that is proven is a fact question for the trial judge, and appellate courts usually defer to those findings.
What does a per curiam affirmance (PCA) mean in Florida?
It means the appellate court upheld the trial court’s judgment with the single word affirmed and no opinion. The losing side gets no explanation, the ruling below stands, and the decision is not precedent for any legal point. In M & S Investment v. Wynwood Propco, the PCA left the trial court’s result in place without endorsing any particular reason for it.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
