Time Is Of The Essence Means Time Is Of The Essence

I tell clients buying commercial property that the phrase “time is of the essence” can be one of the most dangerous combinations of four words in a contract. It looks like boilerplate. It is not. A March 2026 decision out of the New York County Commercial Division shows just how much can ride on a closing date — and on the quiet conversations that happen before a deal closes.

The case is 180 Remsen LLC v. St. Francis College. The facts are a cautionary tale in three acts. First, 180 Remsen signed a purchase and sale agreement to buy St. Francis College’s campus for $180 million. Second, 180 Remsen raised a title objection and did not close on the closing date, which the contract had made time-of-the-essence. Third, the College treated the failure to close as a breach, terminated the agreement, and sold the property to a different buyer, Rockrose. 180 Remsen then sued the new buyer — not the seller — for specific performance, for tortious interference with its purchase agreement, and for breaching a non-disclosure agreement Rockrose had signed earlier when 180 Remsen first brought it into the picture.

The court allowed all three claims to survive, which means there are several lessons for anyone who buys, sells, or finances commercial real estate.

When a contract says time is of the essence as to the closing date, the date stops being aspirational and becomes a hard deadline. Miss it, and you may have handed the other side the right to walk away, keep your deposit, and sell to someone else. Buyers routinely assume there is wiggle room — that a few days won’t matter, that a title issue automatically buys an extension. That assumption is how deposits get forfeited. If you need flexibility, negotiate it into the contract: an outside date, an automatic adjournment right tied to title clearance, a mechanism to extend on notice. Do not rely on a court’s mercy after the fact.
Then there is the title objection, which is where this dispute really turned. A buyer who discovers a title problem has to handle it precisely. There is usually a contractual process — notice within a set window, the seller’s right to cure, a defined consequence if the defect cannot be cleared. A buyer who uses a title objection as an informal excuse to delay, rather than following the contract’s cure procedure to the letter, risks being recast as the party in breach. The difference between “I properly preserved my title objection” and “I just didn’t show up to closing” can be the difference between getting your deposit back and losing the building.
The most interesting part of the decision, though, is what happened to the competing buyer. Rockrose did not have a contract with 180 Remsen to buy anything. Yet it is the defendant, facing claims for tortious interference and breach of an NDA. That is the part dealmakers underestimate. In New York and in mos states, a third party who knowingly induces a seller to break an existing purchase agreement can be liable for tortious interference. A party who signed a confidentiality agreement during a sale process can be liable for using that confidential access to swoop in on the deal. When you are the new buyer stepping into a transaction that someone else thought was theirs, you are not automatically safe just because you never signed the first contract. If you had an NDA with the original suitor, that NDA can follow you into the courtroom.

So How Do I Protect Myself?

Buyers must treat every deadline in the contract as real, Calendar them, staff them, and build in the extensions you might need before you sign — not after you are staring down a closing you cannot make. Handle title objections through the contract’s exact procedure, in writing, on time. And remember time-is-off-the-essence clauses must be considered.

If you are a seller, then you must understand the power a time-of-the-essence closing gives you. But use it carefully. Terminating a contract and reselling is a strong move; it is also the kind of move that generates litigation from a jilted buyer. Document the buyer’s default cleanly, follow your own notice and cure obligations, and make sure your termination is airtight before you sign with someone new.

If you are the competing buyer — the Rockrose in the story — do your diligence on what came before you. Ask whether the seller is already under contract. Revisit any NDA you signed earlier in the process and understand what it restricts. The fact that the seller wants to do a deal with you does not immunize you from the claims of the buyer you displaced.

Here is one piece of information everyone must follow: get a good title company and good counsel involved early. Most of the disasters in this area are not close legal calls. They are unforced errors — a missed date, a mishandled objection, an NDA nobody reread. 180 Remsen is still being litigated, and the parties will spend a great deal of money sorting out who did what. The cheaper version of that lesson is to respect the deadlines and the paperwork the first time, when the deal is still a deal and not yet a lawsuit.

David Seidman is the principal and founder of Seidman Law Group, LLC. He serves as outside general counsel for companies, which requires him to consider a diverse range of corporate, dispute resolution and avoidance, contract drafting and negotiation, real estate, and other issues. He can be reached at david@seidmanlawgroup.com or 312-399-7390.