Barham entered into a contract to sell her residential building to Beverly Way Associates for $3.9..

Barham
entered into a contract to sell her residential building to Beverly Way
Associates for $3.9 million. The contract provided for the opening of escrow
(the procedure by which the sale would be consummated) and a closing within 60
days of that time. It also provided that Beverly Way’s obligation to purchase the
property “shall be conditioned upon” its approval of a number of specified
inspections and documents and delivery of clear title. One of these items was a
certified survey of the property that would show all improvements to the
property and the location of all exceptions to the
»

Barham
entered into a contract to sell her residential building to Beverly Way
Associates for $3.9 million. The contract provided for the opening of escrow
(the procedure by which the sale would be consummated) and a closing within 60
days of that time. It also provided that Beverly Way’s obligation to purchase the
property “shall be conditioned upon” its approval of a number of specified
inspections and documents and delivery of clear title. One of these items was a
certified survey of the property that would show all improvements to the
property and the location of all exceptions to the title. The contract gave
Beverly Way 28 business days in which to inspect and approve documents after
having been furnished them by Barham. On November 2, 1988, Barham furnished the
material that Beverly Way required, and on December 2, Beverly Way wrote to
Barham stating, “We reluctantly disapprove of the matters disclosed on the
Survey and relating to the Property.” This letter described in detail the
reasons for its rejection. The letter expressed the hope that the parties could
“keep the deal alive” and proposed two alternatives that would have changed the
parties’ arrangement substantially. There was no further communication between
the parties until February 1989, when Beverly Way sent a second letter stating
that it was prepared to waive its objections to the survey and to proceed to
close the deal. Barham refused to sell the property and Beverly Way sued for
specific performance. Will Beverly Way win?

»

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