In an unpublished opinion, the New Jersey Appellate Division upheld a trial court's order of specific performance in a commercial real estate transaction involving a car wash. During the due diligence period, the buyer of the car wash discovered some soil contamination and the parties entered into an amendment to the contract providing that the seller would remediate the known contamination as well as, "any additional contamination that may be discovered." When seller's contractor discovered that the ground water was contaminated in addition to the soil, seller sought to void the rider for lack of consideration. However, both the trial and appellate courts disagreed, finding that the buyer had a right to cancel the contract based upon the discovery of the initial contamination and that, "[a]n agreement to refrain from exercising a legal right is a form of consideration." Likewise, the court rejected seller's argument that it only had a duty to address the soil contamination under the terms of the amendment since no such limitation was explicitly stated therein. Consequently, the Appellate Division enforced the trial judge's order of specific performance. (Miguel A. Hector v. Super Car Wash Limited Liability Company, et. al.)
Peter J. Vazquez, Jr.