320 A.2d 194 (N.J. Ch. 1974)
Centex Homes Corporation is engaged in the development and construction of a luxury high-rise condominium project in the Boroughs of Cliffside Park and Fort Lee.1 The project when completed will consist of six 31-story buildings containing in excess of 3,600 condominium apartment units, together with recreational buildings and facilities, parking garages and other common elements associated with this form of residential development.2 As sponsor of the project, Centex offers the condominium apartment units for sale to the public.3 It has filed an offering plan covering such sales with the appropriate regulatory agencies of the States of New Jersey and New York.4
On September 13, 1972 defendants Mr. and Mrs. Eugene Boag executed a contract for the purchase of apartment unit No. 2019 in the building under construction and known as "Winston Towers 200." The contract purchase price was $73,700, and prior to signing the contract defendants had given Centex a deposit in the amount of $525.5 At or shortly after signing the contract defendants delivered to Centex a check in the amount of $6,870 which, together with the deposit, represented approximately 10% of the total purchase of the apartment unit.6
Shortly thereafter Boag was notified by his employer that he was to be transferred to the Chicago, Illinois, area.7 Under date of September 27, 1972 he advised Centex that he "would be unable to complete the purchase" agreement and stopped payment on the $6,870 check.8 Centex deposited the check for collection approximately two weeks after receiving notice from defendant, but the check was not honored by defendants' bank.9
On August 8, 1973 Centex instituted this action in Chancery Division for specific performance of the purchase agreement or, in the alternative, for liquidated damages in the amount of $6,870.10 The matter is presently before this court on the motion of Centex for summary judgment.11
Whether the equitable remedy of specific performance is available to a vendor for the enforcement of a contract for the sale of a condominium apartment unit?12
Specific performance relief should no longer be automatically available to a vendor of real estate.13 It should be confined to those special instances where a vendor will otherwise suffer an economic injury for which his damage remedy at law will not be adequate.14 Other equitable considerations may also require that the relief be granted. The modern view is that the rule of mutuality of remedy is satisfied if the decree of specific performance operates effectively against both parties and gives to each the benefit of a mutual obligation.15 It is not necessary, to serve the ends of equal justice, that the parties shall have identical remedies in case of breach.16
No. The subject matter of the real estate transaction, a condominium apartment unit, has no unique quality but is one of hundreds of virtually identical units being offered by a developer for sale to the public.17 The units are sold by means of sample, in this case model apartments, in much the same manner as items of personal property are sold in the market place.18 The sales prices for the units are fixed in accordance with a schedule filed by Centex as part of its offering plan.19 The only variance as between apartments having the same floor plan, of which six plans are available, is the floor level or the building location within the project.20 In actuality, the condominium apartment units, regardless of their realty label, share the same characteristics as personal property.21
From the foregoing one must conclude that the damages sustained by a condominium sponsor resulting from the breach of the sales agreement are readily measurable and the damage remedy at law is wholly adequate.22 No compelling reasons have been shown by Centex for the granting of specific performance relief.23
The complaint is therefore dismissed as to the first count seeking specific performance.24
Whether the liquidated damages clause in the purchase agreement limits the seller's recovery to the initial deposit when the purchaser stops payment on the balance of the down payment?25
Under the language of the liquidated damage clause authored by Centex, liquidated damages are limited to such moneys as were paid by defendant at the time the default occurred.26
Yes. The liquidated damage clause in the contract, authored by Centex, limits recovery to moneys paid by the purchaser at the time of default. Here the purchaser's default consisted of stopping payment on the check for the balance of the down payment after receiving notice of his transfer.27 As a result, Centex's recovery under the clause is restricted to the initial deposit of $525 that had been paid prior to the default.28
The balance of the down payment was never received due to the stopped check.29
The second count of the complaint for damage relief will also be dismissed.30