The moving party sought a declaration that a residential agreement of purchase and sale was null, void, abandoned, and unenforceable after a long-delayed closing following related trust litigation over ownership of the property.
The court held that when the vendor rejected the purchaser's proposed closing date because vacant possession could not be delivered, the purchaser was entitled to elect to continue insisting on performance rather than treat the contract as terminated.
The purchaser did so within a reasonable time and never demanded return of the deposit.
The delay did not justify rescission because the only real obstacle to closing was the vendor's continuing inability, and later failure to communicate ability, to provide vacant possession.
The motion was dismissed and costs were awarded to the responding party.
