J & E Builders filed suit against R C Development, Inc. seeking specific performance of a purchase and sale agreement for the purchase of real property in Coweta County and for attorney fees. J & E’s complaint allegedly arose from R C’s breach of the parties’ purchase and sale agreement by refusing to close the transaction despite the fact that J & E brought a cashier’s check to the closing table and was otherwise ready to purchase the property. Based on its count for specific performance, J & E filed a notice of lis pendens. R C asserted a counterclaim against J & E, alleging it was J & E that breached the purchase and sale agreement and seeking damages for the alleged wrongful filing of the lis pendens. The parties stipulated to the following material facts: 1 the parties entered into a purchase and sale agreement for real property located in Coweta County; 2 the agreement was prepared by R C’s agent; 3 the parties did not close Phase I on the date specified in the contract, but agreed to extend the closing date for Phase I to August 9, 2005; 4 the agreement provides that: “Seller will record a set of covenants, selected by the Purchaser for the subdivision, before the close of any lot.”; 5 nothing in the agreement forbids or prevents J & E from creating a homeowner’s association; 6 the agreement does not grant R C, the seller of the property, the right to approve, amend or reject any covenants selected by J & E for the property, including the creation of a homeowner’s association; 7 J & E had sufficient funds for the purchase of Phase I at the closing; 8 J & E did not present a set of covenants to be recorded by R C; 9 R C refused to close the sale of the property at the closing because J & E did not present a set of covenants for recording by R C; 10 the contract specifies that J & E would obtain financing through the Bank of Georgia, but instead financing was obtained through Heritage Bank, which was present at the closing and prepared to provide certified funds to close the purchase.
When R C refused to close, J & E filed the present lawsuit. R C subsequently filed a motion for summary judgment on J & E’s claims. R C contends that it is entitled to summary judgment because J & E, as the purchaser, failed to provide a set of covenants at the time of closing. J & E filed a motion for summary judgment demonstrating that it was ready, willing and able to close the sale of the property and that R C was not entitled to refuse to close the sale. According to J & E it was not required to provide a set of covenants at the closing and that, even if it were required to do so, R C waived the requirement. The trial court granted R C’s motion for summary judgment and denied J & E’s motion.1 J & E appeals the order. For reasons stated below, we reverse the trial court’s order and direct the trial court to enter judgment in favor of J & E.
