Let me start this off by saying that Commerical Real Estate is not what I usually do. In additon, I'm a mortgage broker not a RE agent.

Well, my in-laws came to me and began asking questions about their contract as they are selling a property they own to a developer. The developer has been late to perform on every step of the process and now they want out as the COE date is tomorrow and the developer still can't fund for a few more days.

The clause that worries them is:
8.8:
The closing shall occur on the Expected Closing Date, or as soon thereafter as the Escrow is in condition to close; provided, however, that if the closing does not occur by the Expected Closing Date and said date is not extended by mutual instructions of the parties, a party not then in default under this agreement may notify the other party, escrow holder, & brokers in writing that unless the Closing occurs within 5 business days following said notice, the escrow shall be deemed terminated without further notice or instructions.

Ok...so the part of the clause where it says "a party not then in default under this agreement MAY notify the other party"

Is that legaleze for you MUST notify the other parties that they have 5 business days to perform?

Or, is that to say you can entitle the other party to a 5 day grace period should you choose?

Does that mean the closing date can come & go however if no one provides the other with 5 days notice to perform then escrow just continues indefinitely?

They want to cancel ASAP without incurring penalty or opening themselves up to a law suit.

They've been given the option to extend escrow for 30 days for an additional 15K, but would rather have out of the deal all together. However, they need to tell escrow what to do very soon. There's a good chance that the builder/buyer will be able to purchase before the end of the week so, if they provide a 5 day notice now, they'll simply be screwing themselves out of 15K.

I'd like opinions please. Unless you state that you are a lawyer, I will not interpret anything anyone says as "sound legal advice"

Also, plese don't tell me to consult an attorney...I figured that one out myself