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A Day Late and One Contingency Too Many.

Topic:  Real Property, Right of first refusal.  Contract, Performance and Breach

(By William Thompson)  Appeals Court of Massachusetts, re-affirmed the principal that an option contract can be exercised only in strict compliance with its terms.  When a third party makes a bona fide offer to purchase property, an existing right of first refusal evolves into an option to purchase.  The option must be exercised consistently with the terms of the initial contract or the option is dissolved.  Such was the case here, where the plaintiff made two attempts to exercise his options and twice failed to comply with the terms.  First, he attempted to add a financing contingency.  Second, he withdrew the contingency and attempted to exercise the option but on the 11^th day, despite the option being open for only ten days.

Christian vs. Edelin & another, No. 04-P-1391, March 16, (2006)

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THE BOARD HAS SPOKEN, SO THE COURT PROBABLY WON’T LISTEN: WHEN A BOARD OF APPEALS DENIES A VARIANCE, CHANCES ARE, YOU ARE OUT OF CHANCES

Topic: Zoning, Variance

(By William Thompson) The Appeals Court of Massachusetts affirmed a Superior Court decision which upheld a decision of the Board of Appeals of Rockport denying a variance to construct a single family house. In doing so the court showed once again how it is a practically insurmountable task to overturn a board of appeals decision in regards to variances. The fact that without the variance the plaintiff's parcel was essentially landlocked had no bearing on the court which reiterated the principal that "it is the board's evaluation of the seriousness of the problem, not the judge's, which is controlling." Additionally, the court held that plaintiff had not shown that a taking had occurred because the fact that he would not be able to build a house on the lot did not equate to being denied "all economically beneficial use of the property."

 Chiancola vs. Board of Appeals of Rockport, No. 04-P-1610, March 3, 2006

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