Opinion
CL 45151 CL 43415
02-12-2010
DOMINGA H. R. BABOS Plaintiff v. PETER J. KNOP et. al. Defendants PETER J. KNOP, et. al. Plaintiffs v. DOMINGA H.R. BABOS Defendant
MEMORANDUM OPINION
On September 16, 2009, this Court entered a Final Order in these cases that granted Dominga H.R. Babos specific performance of the "Sale Contract and Declaration of Trust" dated June 9, 1992, by and between Mrs. Babos and Ticonderoga Farms, Inc. and Peter J. Knop as Trustee. The Order specifically provided that, "…in the event: (a) Loudoun County does not approve the required subdivision [contemplated by the Agreement] or will approve it only on terms and conditions that are inconsistent with the Sale Contract and Declaration of Trust or the Court's Findings of Fact and Conclusions of Law [that are incorporated by reference herein]; or (b) there is a failure by any party to perform of [sic] any conditions upon which specific performance has been granted; the parties shall promptly meet and confer in good faith to resolve said issue and, if the parties cannot resolve the matter timely, report such circumstances to the Court and submit the matter for such further action as the Court may determine."
Counsel for Mr. Knop and Ticonderoga Farms has motioned the Court to review the issue of specific performance in light of the decision of the County to deny the subdivision contemplated by the agreement. In response, counsel for Mrs. Babos correctly notes the willingness of the County to approve a boundary line adjustment in order to facilitate the conveyance of the property.
In their papers filed in support of and in opposition to the motion, counsel rely on the case of Shepherd v. Colton, 237 Va. 537 (1989). In Shepherd, the Supreme Court, in ordering the conveyance of a parcel for which subdivision approval was a condition precedent, noted the significance of whether such approval was possible. Thus, it is the possibility of compliance in accordance with the terms of the agreement of the parties that controls the outcome of the instant motion.
Under the terms of the "Sale Contract and Declaration of Trust", the parcel to be conveyed is described as totaling in the aggregate 8.18 acres comprised of strips of land forming the borders or boundaries of two parcels, Tax Map 106, parcel 16 A, and Tax Map 106 parcel 14, containing "…all buildings on the two properties." [emphasis added]. Subsequent to the execution of the contract, the County land development ordinances had been amended so as to limit development of the parcel as cluster subdivision or through a boundary line adjustment.
It is clear that the boundary line adjustment cannot be affected without the inclusion of Tax Map 106 parcel 15 in the process. While this parcel may be in common ownership with one of the parties, at the time the contract was executed it was not part of the bargain. Accordingly, the instant case is one where the impossibility of subdivision approval serves to bar specific performance of the agreement.
Accordingly, Mrs. Babos shall be entitled to recover restitution in this case for the purchase price and taxes paid between 1992 and 1996 on the property with interest at the legal rate from the date paid. In that the contract is canceled by reason of impossibility of performance, Mr. Knop and Ticonderoga Farms are not entitled to collect any offsets. No such claim was raised by way of a counterclaim in the case.
Mr. Gaspar may draw an Order consistent with this opinion to which counsel may note their exception.
Entered this ___ day of February 2010
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Thomas D. Horne, Chief Judge The Clerk shall forthwith mail a copy of this Opinion to counsel of record.