Attorney for Defending a Proceeding to Force a Sale of Real Property

How These Lawsuits Usually Start

A proceeding to force the sale of real property is, in legal terms, an action for specific performance of a contract for the sale of real property. The buyer files a complaint in the Supreme Court of the county where the property is located, usually pairs it with a claim for money damages in the alternative, and records a notice of pendency against the property under CPLR Article 65. The cases we defend most often arise from one of these situations:

• The "accepted offer" that never became a contract

  The broker told the buyer their offer was accepted, a deal sheet or transaction summary went out to the attorneys, and the buyer's lawyer started reviewing a draft contract. Before anything was signed, the seller took a higher offer or decided not to sell. The buyer sues, claiming the accepted offer was itself a binding agreement.

• Emails and text messages

  The buyer points to an exchange of emails, texts, or messages through a listing platform in which price, closing date, or other terms were discussed, and argues that the exchange amounts to a signed written contract.

• A contract signed by the buyer only

  The buyer's attorney returned four signed copies of the contract of sale and the down payment check. The seller never countersigned, or signed but never delivered the contract. The buyer claims the deal was done once they signed and paid.

• A contract signed by someone without authority

  A broker, a property manager, a family member, one of several co-owners, or the executor of an estate signed something. The buyer argues that signature binds the owner.

• A signed contract the buyer failed to perform

  There was a fully executed contract, but the buyer missed the mortgage contingency deadline, could not fund, or failed to appear at a time-of-the-essence closing. The seller cancelled and kept the down payment, and the buyer now sues to force the sale anyway.

An Accepted Offer Is Not a Contract in New York

In New York, and particularly in New York City practice, the accepted offer is the beginning of the negotiation, not the end of it. The custom is that no party is bound until a formal written contract of sale has been signed by both sides and delivered, and the down payment has been placed in escrow with the seller's attorney. Until that moment, either party can walk away. A seller who accepts a better offer before contracts are signed has not breached anything, even though the first buyer may have paid for an inspection, an appraisal, or attorney's fees in reliance on the deal.

New York courts consistently refuse to enforce a preliminary agreement where the parties made clear, expressly or by the surrounding circumstances, that they intended to be bound only by a formal contract. A deal sheet that says the terms are "subject to contract," a broker's email confirming an accepted offer, or a draft contract circulated for review with open points all point to an intent not to be bound. The seller's defense in these cases is that there was never a meeting of the minds on a binding agreement, and the complaint should be dismissed at the outset.

The Statute of Frauds: The Seller's Primary Defense

Under General Obligations Law Section 5-703(2), a contract for the sale of real property is void unless the contract, or some note or memorandum of it expressing the consideration, is in writing and subscribed by the party to be charged, or by that party's lawful agent authorized in writing. In a specific performance action against a seller, the party to be charged is the seller. If the seller never signed a writing that contains all the essential terms, the buyer's claim fails as a matter of law, and the case can be dismissed on a pre-answer motion under CPLR 3211(a)(5) without discovery or trial.

The essential terms a writing must contain include the identity of the parties, a description of the property, the purchase price, and the terms of payment. Where the writing leaves material terms open for future agreement (the closing date, a mortgage contingency, what personal property is included, how title objections are handled), the courts have held there is no enforceable contract, because the writing does not show that the parties agreed on all the terms they themselves considered important.

Buyers who rely on emails and text messages face an additional hurdle. New York courts have held that an exchange of emails can satisfy the Statute of Frauds when the emails, read together, contain every essential term and are subscribed by the party to be charged. But the same courts have rejected email claims where the messages were part of an ongoing negotiation, where terms remained open, or where the seller's messages showed an intent to be bound only by a formal contract. Whether a typed name, an automatic signature block, or a broker's message counts as the seller's subscription is litigated frequently, and we build the record on that issue from the first day.

The Statute of Frauds also applies to the buyer's fallback claims. A buyer who cannot enforce an oral or unsigned contract generally cannot recover the same benefit by relabeling the claim as promissory estoppel, unjust enrichment, or breach of an implied covenant. New York courts do not permit a party to use those theories to get around the statute, absent unconscionable injury of a kind that is rarely present in a failed purchase negotiation.

Who Had the Authority to Sign?

Even a signed writing does not bind the owner unless the person who signed had authority to do so. Section 5-703 requires that an agent signing on behalf of the owner be authorized in writing. A listing agreement gives a real estate broker authority to market the property and find a buyer; it does not, in the ordinary case, give the broker authority to sign a contract of sale on the owner's behalf. A broker's email stating that the seller "has accepted" the offer is a report of the negotiation, not a subscription by the seller.

The same rule protects co-owners and estates. When property is owned by several people, one co-owner cannot bind the other co-owners' interests by signing alone, and a court will not order specific performance of a contract against an owner who did not sign it. When property is held by a decedent's estate, the fiduciary's authority to sell depends on the letters issued by the Surrogate's Court and the terms of the will, and a contract signed by an heir or a family member with no letters at all is not enforceable against the estate. We handle the related issues in our practice on notices of pendency filed against estate property.

The Buyer Must Prove They Were Ready, Willing, and Able

Specific performance is an equitable remedy, and a buyer seeking it must prove that they were ready, willing, and able to perform their own side of the bargain on the closing date and remained so. A rejected buyer often cannot make that showing. If the buyer's offer depended on a mortgage that was never committed, on the sale of another property that never closed, or on funds that the buyer cannot document, the buyer was not able to close, and specific performance will be denied regardless of what the writings say. We use discovery on the buyer's financing and proof of funds aggressively, because the buyer's inability to perform is a complete defense to the forced sale.

Where there was a fully signed contract, we examine whether the buyer complied with its terms. Missed mortgage contingency deadlines, failure to deliver the additional deposit, failure to appear at a properly noticed time-of-the-essence closing, or an attempt to renegotiate the price after inspection can each place the buyer, not the seller, in default. A buyer in default cannot obtain specific performance and may forfeit the down payment under the contract's liquidated damages clause. Our down payment dispute practice covers the seller's side of that fight.

Cancelling the Notice of Pendency

For most sellers, the notice of pendency is the most damaging part of the lawsuit. It is recorded in the county clerk's office without any judicial review, it appears on every title search, and no title insurer will insure a buyer or lender over it. In practical terms, it freezes your ability to sell or refinance for as long as it remains of record. If you are under contract with another buyer, that buyer's lender will not fund and that buyer may have the right to cancel the contract and recover their down payment because you cannot deliver insurable title.

New York law gives the seller several routes to remove it. Under CPLR 6514(a), the court must cancel the notice where the buyer failed to serve the summons within thirty days of recording, where the action has been dismissed or settled, or where the notice was recorded in an action that does not affect title to, possession of, or use of real property. Under CPLR 6514(b), the court may cancel the notice where the buyer has not prosecuted the action in good faith. Under CPLR 6515, the court may cancel the notice upon the seller's posting of an undertaking, which allows the closing with the other buyer to proceed while the rejected buyer's claim is converted into a claim for money against the bond. And once the complaint is dismissed on the Statute of Frauds, the notice falls with it, and the buyer generally cannot record a second notice on the same claim.

Under CPLR 6514(c), the court may also direct the buyer to pay the costs and expenses the seller incurred in cancelling a notice of pendency that should not have been filed. We handle lis pendens removal and notice of pendency cancellation as a core part of the firm's litigation practice, and in a rejected-buyer case the motion to cancel is usually the first thing we file.

How the Defense Proceeds

Every case is different, but the sequence in a typical rejected-buyer action in Supreme Court follows this pattern:

1. 1Service of the summons and complaint. The seller has twenty days to respond if served personally, and thirty days if served by another method. A default judgment can be entered if the deadline is missed, so the clock starts immediately.
2. 2Review of every writing. We collect the listing agreement, all offers and counteroffers, the deal sheet, the draft contracts and riders, the emails and text messages between the parties and their brokers and attorneys, and the escrow records. The case is usually won or lost on what these documents do and do not say.
3. 3Pre-answer motion to dismiss. Where no writing signed by the seller contains the essential terms, we move to dismiss under CPLR 3211(a)(5) on the Statute of Frauds, under CPLR 3211(a)(1) on the documentary evidence, and under CPLR 3211(a)(7) for failure to state a cause of action, and we move to cancel the notice of pendency at the same time.
4. 4Motion to cancel or bond the notice of pendency. If the closing with your actual buyer cannot wait for a decision on the merits, we move under CPLR 6515 to cancel the notice upon an undertaking so the sale can proceed.
5. 5Answer, counterclaims, and discovery. If the case survives the motion, we answer with every affirmative defense, demand proof of the buyer's financing and funds, and depose the buyer and the brokers.
6. 6Summary judgment, settlement, or trial. Most of these cases end on a dispositive motion. Those that do not are tried to the court, since specific performance is an equitable claim with no right to a jury.

What to Do Right Now if You Have Been Served

The days after service matter more than any other stage of the case.

• Do not sign anything the buyer or the buyer's broker sends you, and do not respond to the buyer's messages in writing without counsel. Any writing can become the "memorandum" the buyer is looking for.
• Preserve every email, text, and messaging-app conversation with the buyer, the brokers, and your own attorney. Do not delete anything, even messages that seem unhelpful.
• Tell your attorney whether you are under contract with another buyer and when that closing is scheduled. The strategy is different if a closing is imminent.
• Notify the title company on the pending sale that a notice of pendency has been recorded, so it can be handled before the closing rather than discovered at the table.
• Do not attempt to close around the notice of pendency. A conveyance recorded after the notice is subject to the outcome of the lawsuit, and your buyer's title insurer will not permit it.
• Calendar the answer deadline from the date and method of service, and get the summons and complaint to counsel the same day.

The Broker's Commission Claim

A rejected-buyer lawsuit is sometimes accompanied by a second claim, brought by the buyer's broker or by your own listing broker, seeking a commission on the theory that the broker produced a buyer who was ready, willing, and able to purchase on your terms. Whether a commission is owed on a deal that never closed depends on the language of the listing agreement, on whether the agreement conditions the commission on an actual closing, and on whether the buyer was in fact able to perform. We represent sellers in commission disputes as part of our real estate broker practice, and we address the commission claim together with the specific performance claim so that the defenses are consistent across both.

If the Buyer Has a Fully Signed Contract

The defenses described above are strongest where no contract was ever signed and delivered. Where the seller did sign a contract of sale and now wishes not to sell, the analysis changes. Real property is presumed unique, and a buyer with a valid, fully executed contract who was ready, willing, and able to close has a strong claim to specific performance. In that situation the seller's defenses turn on the contract itself: whether a contingency in the seller's favor was triggered, whether the buyer defaulted first, whether the buyer waived a condition, whether the contract was validly cancelled, and whether equitable defenses such as unclean hands or laches apply. We evaluate those cases candidly and, where the contract is enforceable, we negotiate the best available resolution rather than litigate a case that cannot be won. Our real estate contract breach practice covers both sides of that dispute.

Why Sellers Retain Our Firm for This Defense

We are a real estate firm that both closes transactions and litigates property disputes. That combination matters in a rejected-buyer case. We know how the accepted-offer stage works in New York City practice, what a deal sheet is and is not, how contracts are circulated and delivered between attorneys, and what a title company will and will not insure over. We use that knowledge to frame the motion to dismiss and the motion to cancel the notice of pendency in the terms the court expects, and to keep your actual sale on track while the rejected buyer's case is disposed of.

• Immediate review of the summons, complaint, and notice of pendency, and a calendar of every deadline
• Pre-answer motions to dismiss on the Statute of Frauds, lack of authority, and absence of essential terms
• Motions to cancel the notice of pendency under CPLR 6514 and 6515, including on an undertaking where a closing is pending
• Coordination with the title company and the attorney for your actual buyer to preserve the pending sale
• Defense of the buyer's alternative claims for damages, promissory estoppel, and unjust enrichment
• Defense of related broker commission claims
• Recovery of costs and expenses under CPLR 6514(c) where the notice of pendency was improperly filed

Contact a New York Attorney for Defending a Forced Sale of Real Property

If a buyer you rejected has sued to force you to sell your property, or has recorded a notice of pendency against it, the time to act is now. The answer deadline is short, the notice of pendency is blocking your title, and every day of delay is a day your actual sale is at risk. We serve property owners in Manhattan, Brooklyn, Queens, the Bronx, Staten Island, Nassau County, Suffolk County, and Westchester County.

You can contact us by phone at 212-233-1233 or by email at [email protected] to discuss your matter in confidence.