Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MC016891. Carlos P. Baker, Jr., Judge.
Novian & Novian, Farhad Novian and Aaron J. Weissman for Plaintiff and Respondent.
Jeffrey W. Virden for Defendants and Appellants Sarkis Askar and Zouhor Askar.
Judge of the Orange County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendants Sarkis and Zouhor Askar (husband and wife) appeal from a judgment entered in favor of plaintiff Robert Keller after a court trial on Keller’s claim for specific performance on a real estate purchase agreement (Agreement). On appeal, defendants contend: (1) the Agreement is not enforceable because Zouhor did not sign it; (2) Keller failed to perform on the Agreement; and (3) assuming the trial court properly ordered specific performance, the court abused its discretion by failing to account for interest defendants might have earned on the purchase funds or for “improvements” defendants made to the property. We affirm.
We will refer to Sarkis and Zouhor Askar collectively as “defendants” and individually as “Sarkis” and “Zouhor.”
FACTS AND PROCEDURAL HISTORY
Defendants married in 1982. They purchased a single family dwelling in Lancaster (Property) in 1985. By grant deed recorded on October 23, 1985, defendants acquired the Property as “Sarkis Askar and Zouhor Askar, husband and wife, as joint tenants.” Defendants vacated the Property sometime before 1996. From 1996 through 2000, defendants unsuccessfully attempted to sell the Property.
At trial, the parties referred to the Property as the “L-4 Property.” In this decision we will simply refer to it as the “Property” unless quoting from the record.
In June 2001, defendants leased the Property to Keller for a monthly rent of $1,650. Sarkis signed the lease as the “owner” of the Property and as “agent” for Zouhor. Zouhor gave Sarkis the authority to make all decisions on her behalf regarding the Property’s sale and lease to third parties. Keller, along with his sister and brother-in-law (the Feldmans), lived at the Property. Keller moved out of the Property in early 2002; the Feldmans continued living at the Property.
The Feldmans vacated the Property in January 2006, a short time after the underlying litigation commenced.
In January 2004, Sarkis informed Keller that he was interested in selling the Property and offered Keller the opportunity to buy the Property first. At the time, there were at least three trust deeds securing approximately $170,000 in liens and encumbrances on the Property. Keller expressed interest in buying the Property and drew up a document entitled “Real Estate Purchase Agreement.” The Agreement is a one-page typed document reflecting a date of January 22, 2004, the Property address, and a handwritten purchase price of $279,000. The Agreement documents that Keller paid a “deposit outside of escrow” in the amount of $5,000 and provides that “Seller Sam Askar agrees to sell the above property free of all leins [sic] and encumbrances to Robert Keller buyer.” There are two signature lines, one for “Sam Askar Seller” and one for “Robert Keller Buyer.” Sarkis and Keller signed the Agreement, and Sarkis cashed the deposit check on the same day.
Sarkis frequently went by the name Sam.
In November 2005, Keller sued defendants for breach of contract, anticipatory repudiation, specific performance, fraud, and declaratory relief. The matter proceeded to a court trial where the main issues were: (1) the nature of the Agreement, and (2) whether Zouhor consented to the Agreement.
Parties’ agreement: Sarkis testified that when he and Keller signed the Agreement, they verbally agreed that Keller would have four months to prove to Sarkis that he could obtain a loan to finance the purchase of the Property. Sarkis testified that over the next 18 months, he left five to seven unanswered messages for Keller inquiring as to the status of the financing. When Sarkis and Keller finally spoke in July 2005, Sarkis notified Keller that he would still sell the Property to Keller, but at a price higher than reflected in the Agreement. Sarkis testified that he terminated the Agreement sometime before September 2005 because of Keller’s inaction.
Keller testified that when he and Sarkis signed the agreement, they verbally agreed that Sarkis would eliminate all the encumbrances on the Property before escrow opened. Keller testified that he waited for Sarkis to eliminate the encumbrances on the Property for over a year, and when he inquired about Sarkis’ progress on eliminating the encumbrances, Sarkis would make various excuses, such as needing to tend to a sick relative in Syria. Keller testified that in June 2005, Sarkis informed Keller that he was ready to sell the Property. In anticipation of purchasing the Property, Keller sold an investment property he owned in Lancaster to obtain the funds to finance the purchase through an Internal Revenue Service (IRS) 1031 exchange. Keller intended to rent the Property to the Feldmans for $1,700 a month once he owned it. In October 2005, according to Keller, Sarkis verbally informed Keller that he would not sell the Property for the price of $279,000 and instead offered to sell the Property for $629,000.
A “1031 exchange” permits a person who sells and buys like kind property within a limited period of time to defer taxes on the capital gain. (See 26 U.S.C., § 1031 [“No gain or loss shall be recognized on the exchange of property held for productive use in a trade or business or for investment if such property is exchanged solely for property of like kind which is to be held either for productive use in a trade or business or for investment”].)
Zouhor’s consent: Zouhor testified that she had nothing to do with the couple’s business affairs. With Zouhor’s permission, Sarkis maintained the Property and paid the mortgage, taxes, and bills related to the Property. Zouhor testified that she had always given Sarkis the authority to sell or lease the Property on her behalf and at no point did she ever withdraw this authority. She further testified that Sarkis acted as her agent on all issues regarding the Property. According to Zouhor, she only learned about the Agreement to sell the Property when she was deposed in the underlying litigation.
Sarkis testified that he did not inform Zouhor of the Agreement at the time it was executed because Zouhor had given him her permission to sell the Property at any time. Keller testified that that he did not discuss with Sarkis the issue of whether Zouhor should sign the Agreement because on prior occasions, Sarkis had always indicated that he was responsible for the couple’s business affairs.
The trial court’s statement of decision contained the following factual findings: (1) Defendants held title to the Property as joint tenants and there was “no contrary evidence” supporting a different form of ownership. (2) At the time Sarkis and Keller entered into the Agreement, Sarkis represented to Keller that “he had the full authority and consent to act on behalf of [himself] and Mrs. Askar in entering into the Agreement as he had done before in other transactions.” (3) Keller was ready to consummate the Agreement within a matter of months after it was executed, but was prevented from doing so through no fault of his own and purely as a result of Sarkis’ failure to perform. (4) In reliance on Sarkis’ representation that he was ready and willing to sell the Property in August 2005 to Keller, Keller sold an investment property in order to fund his purchase of the Property.
The trial court concluded: (1) the Agreement was a valid contract; (2) Keller was ready to consummate the transaction but was prevented from doing so because of Sarkis’ conduct; and (3) defendants were equitably estopped from claiming that Zouhor did not consent to the Agreement.
The trial court ordered defendants to sell the Property to Keller for the price of $254,000 calculated as follows: $279,000 (selling price), minus $5,000 (deposit received by defendants), minus $20,000 (“lost rents [by Keller], calculated at $1,700.00 per month from October 2005 to the date of the entry of judgment”). The trial court rejected defendants’ request for a reduction in the selling price based on the repairs defendants made to the Property after the Feldmans vacated the Property. According to the trial court: “Defendants’ claimed repairs or improvements were a by-product of their own delay and [d]efendants should not be given an offset therefor. Defendants should not be rewarded for their misconduct.”
At trial, Sarkis testified that he paid a handyman over $14,000 to make repairs to the Property after the Feldmans left. Sarkis’ handyman testified that of the $14,000 in repairs, approximately 10 percent of the repairs were attributable to natural wear and tear and 90 percent were attributable to damage done to the Property by Keller and/or the Feldmans. Keller objected to the testimony of the handyman on the ground that defendants did not inform him that the handyman would testify. Defendants claimed they included him on the witness list. Without resolving the dispute, the court permitted the handyman to testify because his testimony would likely not consume much time.
Defendants moved for a new trial and the court denied the motion. Defendants timely appealed from the final judgment.
DISCUSSION
I. Characterization of the Property
Both spouses are statutorily required to sign any agreement purporting to sell community real property. (Family Code, § 1102, subd. (a) [“both spouses, either personally or by a duly authorized agent, must join in executing any instrument by which that community real property or any interest therein... is sold, conveyed, or encumbered”].) Thus, as a threshold matter, we must determine whether the Property is community property, or as set forth in the deed, property held in joint tenancy.
All statutory references are to the Family Code unless otherwise specified.
There are three presumptions relevant to the characterization of property held by husband and wife.
First, section 2581, subdivision (a) provides: “For the purpose of division of property on dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property, is presumed to be community property.” Parties in a dissolution proceeding can rebut this presumption only with a written agreement or statement that the property is separate property and not community property. (Fam. Code, § 2581, subd. (b).) This presumption does not apply here because the underlying litigation does not involve a marriage dissolution or separation proceeding. (Dorn v. Solomon (1997) 57 Cal.App.4th 650, 652.)
Second, section 760 provides: “Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.” This “is a general presumption that property acquired during marriage by either spouse other than by gift or inheritance is community property.” (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 289-290.)
Third, under the common law “form of title” presumption, “the description in a deed as to how title is held is presumed to reflect the actual ownership interests in the property.” (In re Marriage of Brooks (2008) 169 Cal.App.4th 176, 184-185; see also Evid. Code, § 662 [codifying form of title presumption: “The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof”].)
It is well established that the form of title presumption supersedes the general presumption that all property acquired during marriage is community property in situations that do not involve the division of property pursuant to a marital dissolution or separation. (Lovetro v. Steers (1965) 234 Cal.App.2d 461, 468 (Lovetro) [action on a promissory note; “[w] hen property is conveyed to a husband and wife as joint tenants, the form of the conveyance is such as to destroy the statutory presumption that the property is community even though the consideration for such conveyance consists of community funds or assets”]; Estate of Petersen (1994) 28 Cal.App.4th 1742, 1747 [probate proceeding; “property acquired by a husband and wife by a written instrument in which they are so described is presumed to be community property unless the instrument specifically states otherwise. [Citation.] The grant deed specifically states the property is joint tenancy property which rebuts the community property presumption found in [Family Code section 760]” (emphasis in original)]; In re Summers (9th Cir. 2003) 332 F.3d 1240, 1243 [bankruptcy proceeding; “California law supports the... conclusion that the community property presumption is rebutted when a married couple acquires property from a third a party as joint tenants”]; In re Pavich (E.D. Cal. 1996) 191 B.R. 838, 844 [bankruptcy proceeding applying California law; the general community property presumption “is overcome when a declaration in a deed or other title instrument indicates spouses take title to property as joint tenants”]; In re Rhoads (C.D. Cal. 1991) 130 B.R. 565, 567 [“California law presumes that a married couple who acquire property while married hold the property as community property. (Citations.) A declaration in a deed or other title instrument that the parties take the subject property as joint tenants raises a presumption that the married couple intended to take title in joint tenancy”].)
While the form of title presumption supersedes the general presumption in favor of community property, it is not conclusive; it is rebuttable with evidence of an understanding or agreement between the parties that they hold the property in a form other than the one reflected in the title instrument. (Lovetro, supra, 234 Cal.App.2d at p. 468 [“the form of the instrument under which a husband and wife hold title is not conclusive as to the status of the property; property acquired as joint tenants may be shown to be actually community property or the separate property of one spouse according to the intention, understanding or agreement of the parties.”]; In re Jacobs (S.D. Cal. 1985) 48 B.R. 570, 573 [bankruptcy proceeding applying California law; the “joint tenancy presumption may be rebutted by showing, by a preponderance of the evidence, an agreement or understanding of the husband and wife to hold the property in some other form of title; here as community property”].) “The party opposing the [form of title] presumption must prove that the property is not held in joint tenancy, but as community property.” (Ibid.)
Here, by grant deed recorded on October 23, 1985, defendants acquired the Property as “Sarkis Askar and Zouhor Askar, husband and wife, as joint tenants.” Defendants put forth no evidence at trial that Sarkis and Zouhor had an understanding or agreement that the Property, despite the form of title, was actually community property. Thus, defendants failed to carry their burden of rebutting the form of title presumption and the trial court properly concluded that they held the Property as joint tenants.
We note that defendants cannot hold the Property as community property and joint tenants at the same time. (Estate of Mitchell (1999) 76 Cal.App.4th 1378, 1385 [“Property cannot be held both as community property and in either a joint tenancy or a tenancy in common at the same time”]; see also Jacquemart v. Jacquemart (1956) 142 Cal.App.2d 794, 796 [“A community estate and a joint tenancy cannot exist at the same time in the same property”].)
Defendants cite Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26 in support of their argument that the Property is community property. Droeger is inapposite. In that case, husband and wife agreed the property at issue was community property and the only issue addressed by the Court was whether one spouse could unilaterally encumber his or her half of the community property in order to pay for attorney fees related to dissolution proceedings. (Id. at pp. 30-31, 46.)
II. Statute of Frauds and Equitable Estoppel
Having concluded that defendants held the Property as joint tenants, and not as community property, we turn to the issue of whether the Agreement was a valid contract without Zouhor’s signature.
A joint tenant may convey only his interest in property without the consent of his co-tenant; he may not convey his co-tenant’s interest in the property without the co-tenant’s consent or authorization. (Janes v. LeDeit (1964) 228 Cal.App.2d 474, 486 [“the well-settled rule [is] that one joint tenant, or tenant in common, cannot bind his cotenant without the joinder or acquiescence of such cotenant”].)
Defendants do not contend that Zouhor did not give Sarkis the authority to act on her behalf vis-à-vis the Property. Rather, citing the statute of frauds, Defendants argue that because there is no written agreement authorizing Sarkis to act as Zouhor’s agent, the Agreement is void insofar as it pertains to Zouhor’s interest in the Property. We disagree.
Under the statute of frauds, an agreement to convey real property must be in writing. (Civ. Code, § 1624, subd. (a)(3) [“The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent: An agreement for the... sale of real property”].) If an agent conveys real property on another person’s behalf, the statute of frauds requires that the agency agreement also be in writing. (Ibid.)
Here, because there was no written agency agreement authorizing Sarkis to act as Zouhor’s agent vis-à-vis the Agreement, defendants argue the statute of frauds prevents enforcement of the Agreement and that there is no substantial evidence to support equitable estoppel. We disagree.
It is “well-settled” that “equitable estoppel may preclude the use of a statute of frauds defense.” (Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1068.) As the Supreme Court explained in Monarco v. Lo Greco (1950) 35 Cal.2d 621, 623-624: “The doctrine of estoppel to assert the statute of frauds has been consistently applied by the courts of this state to prevent fraud that would result from refusal to enforce oral contracts in certain circumstances. Such fraud may inhere in the unconscionable injury that would result from denying enforcement of the contract after one party has been induced by the other seriously to change his position in reliance on the contract, or in the unjust enrichment that would result if a party who has received the benefits of the other’s performance were allowed to rely upon the statute.”
“In California, the doctrine of estoppel is proven where one party suffers an unconscionable injury if the statute of frauds is asserted to prevent enforcement of oral contracts.” (Allied Grape Growers v. Bronco Wine Co. (1988) 203 Cal.App.3d 432, 444.) “Unconscionable injury results from denying enforcement of a contract after one party is induced by another party to seriously change position relying upon the oral agreement. It also occurs in cases of unjust enrichment.” (Ibid.)
Defendants point out that a mere monetary loss is insufficient to show an unconscionable injury. (Contreras v. Loya (1961) 192 Cal.App.2d 176, 178; but see Warren v. Merrill (2006) 143 Cal.App.4th 96, 113 .) Thus, they contend Keller’s deposit payment of $5,000 and the monetary loss he suffered as a result of the failed 1031 exchange are insufficient to take the oral agreement out of the statute of frauds.
We need not decide whether those losses alone amount to an unconscionable injury because Keller suffered a significant additional loss in reliance on the Agreement that supported the trial court’s ruling that estoppel brought the Agreement outside the statute of frauds. Keller sold his own real property in preparation for consummating the Agreement. Thus, Keller gave up all his rights to that property, such as the right to sell the property at a higher price when market conditions improved or the right to utilize the property for his own personal enjoyment, in order to fulfill his end of the Agreement with defendants. In our view, Keller’s sale of his own real property in reliance on defendants’ oral representations constituted a serious change in position sufficient to bring the Agreement out of the statute of frauds. (See Wilk v. Vencill (1947) 30 Cal.2d 104, 108 [relying on oral contract to sell real property, plaintiff gave up his search for another house and made preparations to buy and move into the seller’s house; held: equitable estoppel applied to prevent operation of statute of frauds because seller’s representations “lead plaintiff to consider himself entitled to buy [the] house and to regard his search for a family home as ended” and “encouraged his preparations to move into [seller’s] house with his family”]; accord Carlson v. Richardson (1968) 267 Cal.App.2d 204, 208-209 [plaintiffs purchased nearby property for use as temporary residence while house on disputed property was being built; this amounted to serious change in position taking oral contract out of statute of frauds].)
Defendants cite O’Banion v. Paradiso (1964) 61 Cal.2d 559 (O’Banion) to support their position that Zouhor is not bound by Sarkis’ actions without a written agency authorization. But O’Banion is distinguishable because the buyer in that case suffered no unconscionable injury, i.e., no serious change in position. (Id. at pp. 560-561.) The buyer simply turned over a deposit check to an escrow company while he waited for the sale to be finalized. There is no indication in the decision that the deposit was not returned once the transaction fell through.
In addition, the trial court found that Zouhor’s “blanket authority [to Sarkis] to enter into an agreement such as the one involved herein” coupled with the $5,000 deposit into the family’s account gave her “sufficient knowledge of all the circumstances” such as to bind her to the Agreement. This finding was amply supported by the record. Zouhor testified that she affirmatively authorized Sarkis to transact all business affairs related to the Property. She admitted that she gave Sarkis the authority to sell or lease the Property on her behalf and at no point did she ever withdraw this authority. Finally, she testified that Sarkis acted as her agent on all issues regarding the Property.
III. Performance
As a fallback argument, defendants contend that even if the Agreement is enforceable without Zouhor’s signature, Keller failed to perform on the contract within a reasonable time and thus defendants were under no obligation to perform themselves. Specifically, defendants contend that because Keller did not prove he could obtain funding for the purchase of Property within four months after he and Sarkis executed the Agreement, defendants had no duty to perform.
We reject defendants’ contention because it is essentially an evidentiary challenge to the trial court’s finding that Keller was ready to purchase the Property once defendants could assure Keller that the Property was free and clear of all liens and encumbrances. This finding was supported by substantial evidence.
IV. Offsets to Selling Price
Defendants argue that the trial court abused its discretion by reducing the selling price of $279,000 by $20,000 in lost rents Keller would have received had the transaction been completed in October 2005.
Where there is a judgment for specific performance, “execution of the judgment will occur at a date substantially after the date of performance provided by the contract, [thus] financial adjustments must be made to relate [the parties’] performance back to the contract date.” (Stratton v. Tejani (1982) 139 Cal.App.3d 204, 212 (Stratton).) “[W]hen a buyer is deprived of possession of the property pending resolution of the dispute and the seller receives rents and profits, the buyer is entitled to a credit against the purchase price for the rents and profits from the time the property should have been conveyed to him.” (Ibid.)
According to defendants, the trial court abused its discretion by awarding the amount Keller would have received in gross rents, when he was only entitled to net rents. However, the record does not reflect that the court awarded the gross lost rents to Keller. The court indicated that it was awarding Keller lost rents for approximately 22 months (October 25 to entry of judgment in August 2007). If the court had awarded the full $1,700 per month for 22 months, the award would have totaled $37,400. If fact, the award was only for $20,000 in lost rents. We can infer from this discrepancy that the amount awarded represented net lost rents. Furthermore, once Keller put forth evidence that he would have received $1,700 a month in rental income had the transaction been consummated, it was up to defendants, who had owned the Property for years and were familiar with its operating expenses (e.g., property tax, utilities, maintenance fees, etc.), to put forth evidence as to what those expenses would have been. They failed to do so at trial and cannot be heard to complain about the absence of that evidence on appeal.
We turn to whether defendants are entitled to a credit for the amount of interest they would have received on the purchase money. Where there is a judgment for specific performance, “a seller also must be treated as if he had performed in a timely fashion and is entitled to receive the value of his lost use of the purchase money during the period performance was delayed.” (Stratton, supra, 139 Cal.App.3d at p. 212.) In making accounting adjustments pursuant to decree of specific performance, “the trial court is not required to equate the reasonable value of the money with interest at the legal rate.” (Id. at p. 213.) Rather, accounting adjustments between seller and buyer “reflect the application of equitable considerations and not an award of legal damages.” (Ibid.) These considerations could include the amount defendants would have retained of the selling price, if any, once the trust deeds were paid off and the types of investments available to them during the delay period. (Ibid.) “We defer to the trial court for the proper exercise of discretion in permitting the introduction of relevant evidence which will result in an equitable accounting for the intervening events during the period performance was delayed.” (Ibid.)
During trial, defendants presented conflicting testimony about the encumbrances on the property. Sarkis first testified that there were only three encumbrances (in the form of a lien or trust deed) on the Property: one for $86,000, one for $42,000, and one for $40,000. He later testified that there was one additional encumbrance for $11,000. At another point in the trial, he testified there was yet another encumbrance for $17,000. Thus, at no point did defendants ever provide a clear picture to the trial court as to how much they would have retained of the purchase funds had the Agreement been consummated. Additionally, defendants presented no evidence of what types of investment were available to them during the delay period or any other equitable considerations regarding use of the funds.
Neither party requested a bifurcation of accounting issues before the start of trial. Rather, defendants sought an “evidentiary hearing” on accounting issues relating to possible offsets only after the parties had rested their respective cases and the trial court had issued its final ruling that Keller was entitled to specific performance. As Keller correctly points out in the respondent’s brief, “any issues not brought to the attention of the trial court during trial were waived.” In Stratton, supra, 139 Cal.App.3d 204, which defendants rely upon, the parties presented all relevant evidence pertaining to possible offsets during trial and the trial court erred in how it calculated the offsets. (Id. at p. 213.) In contrast, even though defendants had the opportunity during trial to put on evidence regarding how they would have used the purchase funds, they failed to do so. Thus, we conclude the trial court did not abuse its discretion by declining to award them interest on the purchase funds.
Additionally, defendants contend the trial court abused its discretion by failing to reimburse them for $14,000 worth of “improvements” they made to the Property after the Feldmans moved out. The trial court ruled that “[d]efendants’ claimed repairs or improvements were a by-product of their own delay and [d]efendants should not be given an offset therefor. Defendants should not be rewarded for their misconduct.”
For several reasons, we conclude that the trial court did not abuse its discretion. First, accounting adjustments between seller and buyer “reflect the application of equitable considerations and not an award of legal damages” (Stratton, supra, 139 Cal.App.3d at p. 213). In this case, the trial court did not simply reject defendant’s interpretation of the underlying agreement. Instead, the court made a finding that defendants engaged in “misconduct.” The trial court was entitled to factor this finding of misconduct into its application of equitable considerations between the parties.
Second, defendants did not meet their burden of showing that $14,000 worth of improvements were “necessary” to operate the property during the delay period. (Bravo v. Buelow (1985) 168 Cal.App.3d 208, 215 [upon a decree of specific performance, a court has the discretion to award the seller “necessary expenses incurred by the [seller] in the operation of the property” during the delay period].) Examples of expenses held “necessary” by courts include the payment of property management fees, property taxes, and insurance premiums paid during the delay period. (E.g., Ellis v. Mihelis (1963) 60 Cal.2d 206, 222; Simmons v. Dryer (1963) 216 Cal.App.2d 733, 746.) Such expenditures must be made to maintain the owner’s fundamental interest in the property while the dispute over who is entitled to the property is resolved.
In contrast, the defendants’ handyman testified that the repairs he made to the Property (e.g., electrical work, repairing cabinets, replacing a bathroom counter top, and painting the exterior) were done because “there [was] no way you could rent that place out without fixing” the damage. Assuming the handyman’s opinion that 90 percent of the repairs were done to fix damage caused by the Feldmans was accurate, these repairs were not “necessary” to maintain the defendants’ fundamental interest in the Property in the way paying property taxes and insurance premiums are necessary. They were done, as the handyman testified, only to make the Property attractive to prospective renters.
Third, financial adjustments between parties after a judgment of specific performance “must be made to relate [the parties’] performance back to the contract date.” (Stratton, supra, 139 Cal.App.3d at p. 212.) Here, Feldman and her husband were living at the Property at the time defendants were supposed to perform on the contract. Feldman testified that she intended to rent the Property from Keller once he became the owner, and Keller testified that he intended to rent the Property to Feldman once he became the owner. Had defendants performed when they were supposed to under the contract, Feldman and her husband would not have moved out and Keller would have had established tenants willing to rent the Property, thus obviating any need for repairs made to attract other renters. As the trial court reasonably concluded, defendants’ dilatory conduct was the reason for the repairs.
For the foregoing reasons, we conclude the trial court did not act beyond the bounds of reason in rejecting defendants’ request for a $14,000 offset to the purchase price.
DISPOSITION
The judgment is affirmed. Keller shall recover his costs on appeal.
We concur: MALLANO, P. J., ROTHSCHILD, J.