Conduct Can Effectuate “Treat-as-Waived” Financing Contingencies; Statute of Frauds Limits and Specific-Performance Presumption Reaffirmed

Case: J&C Properties v. Rayster Realty, Citation: 2026 N.H. 12 (N.H. Apr. 2, 2026)
Court: Supreme Court of New Hampshire (Donovan, J.)
Posture: Seller appealed (1) denial of partial summary judgment, (2) evidentiary rulings concerning oral communications under statute of frauds, and (3) decree of specific performance after a jury verdict for buyer.

1. Introduction

J&C Properties v. Rayster Realty arises from a failed sale of a twelve-unit apartment complex in Manchester, New Hampshire. The parties executed a purchase-and-sale agreement (P&S) with (i) a closing deadline of “on or before November 30th, 2021” and (ii) a financing contingency requiring the buyer to deliver a written financing commitment by November 26, 2021 (or proof of inability), expressly stating “TIME IS OF THE ESSENCE.”

The financing clause was atypically explicit about the seller’s post-deadline choices: if the buyer missed the financing deadline, the seller could either (a) declare the buyer in default, or (b) “Treat[] the financing contingency as having been waived by” the buyer—after which the seller could later declare default if the buyer did “not close in a timely manner.”

The bank’s loan was conditionally approved but the appraisal was expected to be delayed. The buyer communicated with the seller about the delay and proposed written addenda extending deadlines, which the seller did not sign. Nonetheless, the parties engaged in post-deadline communications about closing logistics and discussed a December closing. The seller then terminated the deal in early December, offering to return the deposit, and the buyer sued for specific performance.

Key Issues

  • Waiver by conduct: Could the seller’s post-deadline conduct support an inference that it exercised the P&S option to “treat” the financing contingency as waived (thereby waiving its immediate-default option), despite no signed addendum?
  • Statute of frauds: Did RSA 506:1 bar evidence of oral conversations suggesting extensions/waiver of financing and closing timing?
  • Remedy: Should specific performance be denied because the buyer was an investor and could allegedly be made whole by money damages?

2. Summary of the Opinion

Holdings (affirmed):

  • Summary judgment properly denied: Post-November 26 communications and conduct could support competing inferences about whether the seller deemed the financing contingency waived; that factual dispute was material.
  • Oral communications admissible: (i) The buyer’s reliance/partial performance supported admitting evidence of an oral extension under the part-performance doctrine; and (ii) post-deadline communications about scheduling a December closing did not necessarily “modify” the contract where the P&S itself contemplated waiver-by-treatment under the seller’s election.
  • Specific performance properly awarded: The Court reaffirmed the longstanding presumption that land is unique and damages are inadequate in land-sale breaches, declining to carve out “modern investor” transactions from that rule.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

A. Appellate review and summary judgment standards

  • Lama v. Borras, 16 F.3d 473, 476 n.5 (1st Cir. 1994): The Court noted (without deciding) the common federal practice of declining to review denial of summary judgment after a full trial. Because the buyer did not press nonreviewability, the Court assumed reviewability and addressed the merits. Impact within the opinion: procedural framing; the substantive analysis still proceeded under New Hampshire summary-judgment principles.
  • O'Malley-Joyce v. Travelers Home & Marine Ins. Co., 175 N.H. 245 (2022) (quoting RSA 491:8-a, III (2010)): Provided the “no genuine issue of material fact” standard.
  • Porter v. City of Manchester, 155 N.H. 149 (2007): Defined materiality and the requirement to view inferences favorably to the non-moving party; used to validate denial of summary judgment where competing inferences existed.
  • Robinson v. 1 Bouchard Street Realty, 177 N.H. 59 (2024), 2024 N.H. 59, ¶6: Supplied the de novo standard for reviewing application of law to facts at summary judgment—important because the seller framed the issue as a pure legal insufficiency of “waiver” evidence.

B. Waiver doctrine in contract settings

  • Private Jet Servs. Grp. v. Tauck, Inc., 176 N.H. 553 (2024), 2024 N.H. 20, ¶12: Provided the modern articulation: waiver is intentional relinquishment; it may be shown by explicit language or conduct justifying an inference of relinquishment. Crucial role: The Court used Private Jet to reject the notion that waiver must always be express, emphasizing the legitimacy of inference from conduct.
  • Leavitt v. Fowler, 118 N.H. 541 (1978): Confirmed that a contractual provision for a party’s benefit may be waived by that party. Use in this case: Supported the conceptual possibility that the seller could waive its protective right to declare default upon the financing-deadline miss.
  • Pine Gravel, Inc. v. Cianchette d/b/a Site Prep., 128 N.H. 460 (1986): Quoted for the requirement that “a clear expression of intent to waive the right must exist.” How the Court reconciled it: The “clear expression” could be inferred from conduct—particularly because the P&S itself contemplated the seller “treating” the contingency as waived, i.e., a decision that can be manifested operationally rather than in a signed addendum.

C. Statute of frauds and modifications of real estate contracts

  • Barking Dog v. Citizens Ins. Co. of America, 164 N.H. 80 (2012) and Stachulski v. Apple New England, LLC, 171 N.H. 158 (2018): Provided the evidentiary “unsustainable exercise of discretion” standard for admission of evidence, anchoring the Court’s deference on admissibility decisions.
  • Byblos Corp. v. Salem Farm Realty Trust, 141 N.H. 726 (1997) and Tsiatsios v. Tsiatsios, 140 N.H. 173 (1995): Clarified review standards for statute-of-frauds applicability (law) and compliance (mixed question).
  • Greene v. McLeod, 156 N.H. 724 (2008): Restated RSA 506:1’s requirements and identified essential terms. Also critical: Supplied the part-performance doctrine formulation as an equitable escape valve.
  • Cowern v. Norris, 137 N.H. 719 (1993) and Langdon v. Sibley, 100 N.H. 373 (1956): Both establish that real estate contracts generally may be modified only by a subsequent writing or “other equitable circumstances,” and that conduct alone does not necessarily suffice to modify certain terms. Key distinction drawn by the Court: These cases involved true modifications not expressly contemplated by the original written contract; here, the P&S expressly contemplated the seller’s post-deadline election to “treat” the contingency as waived.
  • Warren v. Dodge, 83 N.H. 47 (1927) and Bower v. Davis & Symonds Lumber Co., 119 N.H. 605 (1979): These cases underpin the doctrine that an oral extension of time, given and acted upon, may excuse strict compliance—“even when time has been made of the essence.” Function here: Justified admitting the November 2 oral conversation because the buyer acted in reliance (partial performance) despite knowing financing finalization would be late.
  • Guaraldi v. Trans-Lease Group, 136 N.H. 457 (1992): Stated that contract modification requires mutual assent (“minds of the parties must meet”). Use in this case: Supported the Court’s conclusion that certain post-deadline events were not “modifications” at all—particularly where the seller’s unilateral election (treat-as-waived) operated within the contract’s prewritten option structure.
  • State v. Batista-Salva, 171 N.H. 818 (2019): Cited on issue preservation; the Court rejected the buyer’s argument that the seller failed to preserve the financing-contingency issue.

D. Specific performance in land-sale breaches

  • Atlantic Restaurant Mgt. Corp. v. Munro, 130 N.H. 460 (1988): The central authority for (i) trial-court discretion and (ii) the strong presumption favoring specific performance in land-sale contracts absent inequity or impossibility. Important comparison: The Court noted it previously affirmed specific performance for a corporate buyer seeking commercial use, undermining the seller’s attempt to distinguish “investors.”
  • Tuttle v. Palmer, 117 N.H. 477 (1977): Reiterated the general rule that specific performance is denied where there is an adequate remedy at law—serving as the baseline from which the “land is unique” exception is drawn.
  • Moore v. Sterling Warner Indus. Inv. Corp., 114 N.H. 520 (1974) (per curiam): Stated the premise that real estate’s uniqueness makes contract damages “irreparable as a matter of law,” supporting the presumption.
  • Cecere v. Aetna Ins. Co., 145 N.H. 660 (2001): Cited for the policy of protecting parties’ reasonably justified expectations—used to resist changing entrenched real-estate remedial assumptions.
  • Dow v. Railroad, 67 N.H. 1 (1887): Discussed by the parties for the “particular liking to the land” language. The Court minimized it, noting the “particular liking” discussion was dicta and not essential to modern NH doctrine.
  • 25 S. Williston, Contracts § 67:65 (4th ed. 2019): Secondary authority reinforcing that proof of inadequate monetary remedy is generally not required for land because land is considered unique.
  • Vogel v. Vogel, 137 N.H. 321 (1993): Used to dispose summarily of remaining arguments not warranting further discussion.

3.2 Legal Reasoning

A. The “treat as waived” option can be evidenced by conduct (and can create a triable fact issue)

The financing contingency was structured as a seller-protective clause with an explicit election upon the buyer’s missed deadline: either declare default or treat the contingency as waived. The Court emphasized that waiver can be proved by conduct where circumstances justify an inference of relinquishment (Private Jet Servs. Grp. v. Tauck, Inc.), so long as a “clear expression of intent” exists (Pine Gravel, Inc. v. Cianchette d/b/a Site Prep.).

The Court’s key move was contractual-textual: the phrase “Treating the financing contingency as having been waived” expressly contemplated manifestation by behavior—operating as though the deal is proceeding without the contingency being available as an immediate termination lever. Therefore, post-deadline emails and closing preparations could reasonably support an inference that the seller elected the treat-as-waived path, even though no addendum was signed.

Because competing inferences were reasonable (seller: “we cancelled due to missed financing deadline”; buyer: “you proceeded as if waived and then backed out for price reasons”), the Court affirmed the denial of summary judgment.

B. Statute of frauds: distinguishing (i) enforceable oral extensions supported by part performance from (ii) non-modification conduct within the contract’s own election framework

The opinion draws two analytically distinct routes to admissibility of oral communications:

  1. November 2 conversation (oral extension / reliance): Even if the call functioned as an oral extension of the financing timeline, the Court held that the buyer’s subsequent actions—pursuing the appraisal and moving toward closing while knowing financing finalization would occur after the deadline—were sufficient “partial performance” or reliance to take the issue outside a strict statute-of-frauds bar. The Court invoked Warren v. Dodge (oral extension acted upon is a legal equivalent to compliance) and Bower v. Davis & Symonds Lumber Co. (consenting to postponement and inducing reliance prevents claiming default, even with “time is of the essence”).
  2. November 29–30 communications (closing scheduling): The Court reasoned these communications did not necessarily “modify” the P&S at all. Instead, they could evidence the seller’s unilateral election—already authorized by the written P&S—to treat the contingency as waived after the missed deadline. Because this “waiver” occurred within the written contract’s contemplated mechanics, cases requiring a signed writing for modifications—Cowern v. Norris and Langdon v. Sibley—were “inapposite.” And because modification requires mutual assent (Guaraldi v. Trans-Lease Group), a unilateral treat-as-waived election is analytically different from a bilateral amendment.

This reasoning narrows the statute-of-frauds fight: not every post-deadline oral exchange is a “modification”; some are evidence of elections and waivers contemplated by the original written agreement.

C. Specific performance: reaffirmation of the “uniqueness of land” presumption despite investor context

The seller’s most overt law-reform request was to limit specific performance where the buyer is an investor and monetary damages (e.g., projected profit) might be calculable. The Court declined, reaffirming that “in contracts for the sale of land, the inadequacy of the legal remedy is well settled” (Atlantic Restaurant Mgt. Corp. v. Munro), and that real estate’s unique character makes damages irreparable as a matter of law (Moore v. Sterling Warner Indus. Inv. Corp.).

Two rationales stand out:

  • Doctrinal continuity and reliance interests: The Court accepted that the presumption of specific performance is a “foundational assumption” in real estate contracting (citing the Marsh law review article) and changing it would disrupt settled expectations—contrary to the policy of giving effect to parties’ reasonably justified expectations (Cecere v. Aetna Ins. Co.).
  • Equities in the particular record: The trial court found the seller terminated because the price no longer seemed advantageous, not because performance was inequitable or impossible. The seller’s claimed “sentimental value” was discounted because the seller also held the property for rental profit. With no inequity or impossibility shown, the traditional presumption controlled.

3.3 Impact

Practical and doctrinal consequences likely to influence future New Hampshire real estate disputes:

  • Election-by-conduct is enhanced where the contract text contemplates it: Drafting matters. When a P&S expressly authorizes a party to “treat” a condition as waived, courts may be more willing to infer that election from post-deadline performance behavior (emails with closing agent, scheduling, compliance steps), creating triable fact issues and reducing the effectiveness of purely formal “no signed addendum” defenses.
  • Statute-of-frauds arguments may fail if the alleged “change” is not a modification: The opinion supplies a useful frame: ask whether the disputed conduct is (i) evidence of a unilateral waiver/election contemplated by the writing, or (ii) a bilateral contract amendment requiring mutual assent and thus a writing or equitable circumstances.
  • Part-performance remains a potent tool for timing extensions: Even with “TIME IS OF THE ESSENCE,” an oral extension “given and acted upon” can operate as an excuse for noncompliance (Warren v. Dodge; Bower v. Davis & Symonds Lumber Co.), at least for evidentiary admissibility and equitable enforcement purposes.
  • Specific performance remains the default remedy—even for “modern” investor buyers: Sellers cannot assume that proving a buyer is profit-motivated will defeat specific performance. Absent inequity or impossibility, the presumption stands, and attempts to recharacterize land as a replaceable “widget” did not gain traction.
  • Litigation strategy shift: Expect greater emphasis on documenting (or avoiding) post-deadline conduct. Parties who want to preserve strict rights should consider explicit, contemporaneous written notices of default or non-waiver, and should avoid closing logistics that could be read as “proceeding anyway.”

4. Complex Concepts Simplified

  • Financing contingency: A contract clause allowing the buyer to exit (or making the deal conditional) if the buyer cannot obtain financing by a specified date.
  • “Time is of the essence”: A term making deadlines material; missing them can be a breach. Even so, a party can waive strict enforcement by consenting to delays and inducing reliance.
  • Waiver (by conduct): Giving up a known contractual right. It can be express (in words) or implied (in actions), if the actions clearly show the intent to give up the right.
  • Contract modification vs. election within the contract: A modification changes the contract and requires mutual agreement (often a writing in land deals). An “election” is choosing among options already provided by the contract (e.g., declare default vs. treat contingency as waived).
  • Statute of frauds (RSA 506:1): Requires a signed writing for contracts for the sale of land (and typically for modifications), to prevent fraud and uncertainty.
  • Part performance: An equitable doctrine allowing enforcement (or excusing strict compliance) when one party materially relies on an oral agreement and would suffer unjust injury if the statute of frauds were rigidly applied.
  • Specific performance: A court order requiring a party to do what it promised (here, sell/buy the land), typically favored for real estate because each parcel is legally treated as unique.

5. Conclusion

J&C Properties v. Rayster Realty reinforces three interlocking principles in New Hampshire real estate contract law: (1) where a P&S contemplates waiver/election mechanics (such as “treat as waived”), post-deadline conduct can support an inference of waiver sufficient to defeat summary judgment; (2) statute-of-frauds objections do not automatically exclude oral communications when equitable doctrines (part performance) apply or when the communications evidence an election within the written contract rather than a mutual modification; and (3) the presumption favoring specific performance in land-sale contracts remains intact—even for investor-buyers—absent inequity or impossibility.

The decision’s broader significance lies in its practical message: in real estate transactions, parties’ post-deadline behavior and communications can carry legal consequences comparable to formal amendments, especially when the contract language anticipates election by “treatment” and the opposing party relies on that course of dealing.