There is an amazing development in the saga of Extell's Rushmore development in Riverside South and the buyers who exercised a clause in their contracts to back out of the deal. The Wall Street Journal has the story.
Here's a way to think about what happened. Suppose you and I made a deal. Suppose I was the one who wrote the contract that spelled out the terms of the deal. We both had every opportunity to review the contract before signing. Then we signed it.
Now let's imagine that I liked the deal I made with you so much that I made similar deals with dozens of other people, and I signed exactly the same contract each time.
Some time passes, and you and the dozens of other people like you exercise one of the plainly written terms of the contract and backed out -- as was your right, according to the contract we both signed. We all agree that the contract says what it says, and according to the undisputed language of the contract, you and the others all have the right to back out. Fine, no problem.
Here comes the twist: suppose that I then claim that the contract doesn't say what I meant it to say. I don't dispute the language and what it means; I assert that I meant it to say something else, and that YOU should be bound by what I NOW say I MEANT it to say, ignoring what the words of the contract IN FACT SAY!! How would you feel? How would you respond? Would you think I was an honorable person? Would you recommend me to any of your friends?
Now let's suppose that instead being little old me, I'm two giant, powerful organizations. Let's suppose I'm a partnership of a multi-billion-dollar developer and one of the world's largest and best-known private equity firms. I've got loads of staff people and a fancy law firm whose business it is to make the long gobbledy-gook contract be as much in my favor as possible. I've even filed the contract with the state AG and updated it a few times. In other words, all the power, brains and money are on my side. I've shoved the contract under your nose and said, in effect, if you want to do business with me, sign here. I'm not negotiating terms. Here it is, take it or leave it.
Time passes, and you exercise your right to back out, according to the terms of the contract I and my powerful partners and powerful lawyers wrote and reviewed. Instead of saying "you're right, that's what the contract says, here's your deposit back, have a nice life," I say: "no way! I MEANT something ELSE -- didn't you KNOW?? Contracts mean WHAT I SAY I MEANT when I wrote them! I didn't really mean what's in the contract that I wrote -- that was a "typo."
Again, how would you feel?
Here's the reality: Extell and the Carlyle did pretty much what I speculate above that I might have done, in the contracts they had buyers sign for the Rushmore condo in the Riverside South development. A number of buyers, who quite sensibly relied on the documents meaning what the words in the documents plainly say, exercised their right to back out of the commitment to buy at the Rushmore. Extell refused to give them their deposits back. The matter went to AG Cuomo, who ruled in favor of the buyers. I have written about this before.
Now there's a new development; the WSJ article about it is worth reading in its entirety. Here's another angle on the same situation. According to the Journal,
"Real-estate developers [Extell Development Co. and Carlyle Realty Partners] are suing Attorney General Andrew Cuomo in
federal court, alleging that his office violated the U.S. Constitution
when ordering a refund of $16 million to 41 condo owners at a West Side
building.
...
"This case is challenging something that has been an accepted mechanism
in New York state for decades," said Jay Neveloff, an attorney at Kramer
Levin Naftalis & Frankel. He said he couldn't recall another time
when the attorney general's role has been challenged on constitutional
grounds.
...
"Attorney Richard C. Cohen, who represented a group of Rushmore buyers,
argued that his clients relied on the 2008 date. He said Extell changed
its tune after the attorney general ruled against the developer.
"Extell, having agreed in the offering plan to abide by an attorney
general ruling on down payments, now claims that process is
unconstitutional," he said.
Extell, supported every step of the way by the Carlyle Group, appears to have a challenging time abiding by agreements that they have made and/or that clearly bind them.