The plaintiffs purchased a pre-construction condominium unit from the defendant developer.
The tentative occupancy date was delayed by nearly 24 months, and the confirmed occupancy date was subsequently extended multiple times.
The plaintiffs were unable to secure mortgage financing and terminated the agreement, seeking the return of their deposit and damages for breach of contract.
The court found that while the developer breached the agreement by extending the confirmed occupancy date without valid unavoidable delays, the plaintiffs had affirmed the contract by continuing to press for performance.
The court dismissed the action and declined to grant relief from forfeiture, finding that the retained deposit did not constitute a windfall for the developer given its incurred costs.
