Six-year Delay in Asking For Earnest Money Back Too Long – IL Court Applies Laches Defense

Earlier this year, an Illinois appeal court examined the equitable defense of laches in an earnest money dispute between two contracting parties and former friends.  Derived from an archaic French word – laschesse – meaning “dilatory,” laches applies where a plaintiff sits on his legal rights to the point where it’s unfair to make a defendant mount a defense to the delayed claim.

The 2005 real estate contract at issue in Gardner v. Dolak, 2016 IL App (3d) 140848-U fell through and at different points in 2009 and 2011, the plaintiff buyer asked for her $55,000 deposit back.  The seller’s exclusive remedy for a buyer breach was retention of the buyer’s earnest money.

The contract also set specific deadlines for the plaintiff to complete a flood plain study and topographical survey.  When the plaintiff failed to meet the deadlines, the sale fell through.  Plaintiff sued when the Defendant refused to refund the earnest money deposit.

After a bench trial, the trial court entered judgment for the seller defendant on the basis that the plaintiff waited too long to sue and the delay in suing prejudiced the defendant.

The appeals court affirmed and sketched the contours of the laches doctrine:

  • Laches is an equitable doctrine that prevents a party from asserting a claim where he unreasonably delayed pursuing the claim and the delay misled or prejudiced his opponent;
  • Laches is based on the principle that courts will not aid a party who has knowingly sat on his rights that could have been asserted earlier;
  • To win a laches defense, the defendant must show (1) plaintiff lacked diligence in presenting his claim, and (2) the plaintiff’s delay resulted in prejudice;
  • The mere passage of time is not enough though; the defendant must show prejudice or hardship on top of the chronological delay;
  • In the context of real estate, wide property value fluctuations that harm the party claiming laches is evidence of prejudice that will support a finding of laches;
  • A party can successfully assert laches where the plaintiff remains passive and the defendant incurs risk, enters into obligations, or makes monetary expenditures.

Agreeing that the evidence supported the laches finding, the appeals court pointed out that plaintiff didn’t notify the defendant she wasn’t going through with the purchase until 6 years after the contract was signed.  During this six years, the value of the property declined markedly and the seller defendant spent considerable funds to maintain the property.

Taken together, the passage of time between contract execution (2005) and plaintiff’s lawsuit (2011) and measurable prejudice (based on the property’s drop in value) to the seller defendant was enough to support the trial court’s laches judgment.


This case presents a straightforward summary of laches in the real estate context.  The party claiming laches must show more than mere passage of time between the claimed injury and the lawsuit filing date.  He must also demonstrate changed financial position as a result of the lapse of time.

Here, the property’s precipitous drop in value in the six years between contract’s execution and termination was a key factor cementing the court’s laches finding.  The question I had after reading this was what if the value of the property doubled or tripled in the interim 5 years?  Would the defendant still be able to prove laches?  Maybe so but that would be a harder sell.  The defendant would need to show the amount he spent maintaining the property over the six years exceeded the increase in property value.


Statute of Frauds Defeats Seller’s Countersuit for Damages After Property Sale Falls Through (IL 2d Dist.)


When a deal to sell two industrial buildings collapsed, the would-be buyer sued to recover his $10K earnest money deposit. The seller, thinking the buyer was to blame for the aborted contract, countersued for $300K – the difference between the sale price plaintiff was supposed to pay and for what the seller ultimately sold the buildings to another buyer

Affirming dismissal of the seller’s counterclaim, the appeals court in Pease v. McPike, 2015 IL App (2d) 140881-U examines the contours of the Statute of Frauds (“SOF”) as it applies to commercial real estate transactions.

The plaintiff buyer never signed the contract that the sellers were trying to enforce.  Instead, the buyer signed a cancellation notice that post-dated the failed contract.  The seller argued that the buyer’s signature on the cancellation notice coupled with the allegations in his complaint were enough to satisfy the writing requirement (and that the buyer “signed” the earlier contract) of the SOF.

An Illinois real estate contract cannot be enforced under the SOF unless (1) there is a written memorandum or note on one or more documents; (2) the documents (if there are more than one) collectively contain a description of the property and terms of sale, including price and manner of payment, and (3) the memorandum or note is signed by the party to be charged (here, the plaintiff buyer). 

To satisfy the SOF, the writing itself doesn’t have to be a contract; it just has to be evidence that one (a contract) exists.  The writing doesn’t have to consist of a single page, but the writing signed by the party being sued must contain the essential terms of the contract and, where several writings exist, they must refer to one another or otherwise show a connection between them.  In a case of multiple writings, not all of them have to be signed. However, the writings that are signed must have a connection to the contract.  (¶ 41). 

A written cancellation of a contract can sometimes satisfy the SOF writing requirement and demonstrate to a court that a written contract does in fact exist.  However, the cancellation notice must explicitly refer to the contract and delineate the contract’s key terms. (¶ 48).

Here, there were two contracts – the initial purchase contract (which plaintiff did not sign) and the second “replacement contract” (which plaintiff did sign).  The Court found that the cancellation notice (cancelling the first contract) signed by the plaintiff wasn’t enough to bind him to the first contract (the contract the seller wanted to enforce).  On its face, that contract didn’t mention plaintiff and it wasn’t signed by him.

The court also rejected the seller’s judicial admission argument – that plaintiff’s complaint for the return of his earnest money was a judicial admission that he was party to the first contract.  A judicial admission is binding and conclusive on the party admitting a fact and withdraws that fact from the need to prove it at trial.  (¶ 53).

The court found that while the plaintiff’s complaint wasn’t the most artfully drafted one, it still alleged enough to demonstrate the plaintiff wasn’t a party to the first contract.  At most, plaintiff alleged (“admitted”) that he submitted a contingent offer to buy the buildings and that the offer was ultimately withdrawn.


1/ Multiple writings, when read together, can satisfy SOF writing requirement;

2/ In a case (like here) where there is a patchwork of writings, the writing must explicitly refer to the underlying contract and show a connection to the contract to satisfy the SOF; and

3/ A complaint allegation can constitute a judicial admission but only if it is a definite, categorical statement.  If it’s vague or a hedging allegation, it likely won’t constitute a judicial admission.