The seller of a farm property sued after the buyer failed to close a commercial real estate transaction involving land, buildings, and natural gas wells.
The court held that the environmental warranty in the agreement of purchase and sale did not extend to the gas wells and, in any event, was not breached and constituted a warranty rather than a condition, requiring the buyer to close and sue for damages if necessary.
The court further held that the 'as it is, where it is' clause was binding, the buyer was deemed to have admitted inability or unwillingness to close through an unanswered request to admit, and relief against forfeiture was not available because retention of the 14% deposit was not unconscionable.
The seller had reasonably mitigated its loss and recovered carrying and resale-related damages of $287,296.57, subject to credit for the forfeited $250,000 deposit.
The buyer's counterclaim against the realtor and the seller, and the seller's crossclaim against the realtor and brokerage, were both dismissed.
