483 N.E.2d 924 (1985)
The purchaser and the developer executed an agreement for the purchase to buy a condominium that was to be constructed, and the purchaser paid a large amount of earnest money on the property. Although the building containing the property was constructed, it was never formally declared a condominium and as a result the terms of the agreement were never fulfilled. The purchaser argued that he was entitled to specific performance and money damages and that he should have been allowed to amend his complaint. The mortgage holder argued that it now controlled the property, that specific performance was impossible, and that res judicata prohibited the amendment of the purchaser's complaint.
- The court concluded that:
- (1) the unit in question physically existed;
- (2) the mortgage holder had retained control of the property through a foreclosure proceeding;
- (3) any "non-existence" claimed by the mortgage holder was due to the mortgage holder's refusal to declare the building a condominium;
- (4) the condominium was real property;
- (5) specific performance was an available remedy; and
- (6) allowing the purchase to amend his complaint did not prejudice the mortgage holder.
The court reversed the trial court order dismissing the cause of action for specific performance and reversed the order denying the purchaser leave to amend his complaint. The court remanded for further proceedings.
Suggested law school study materials
Shop Amazon for the best prices on Law School Course Materials.