A contractor had the purchasers of a new apartment sign an agreement according to which because the tenants sought to make changes in their (yet to be built) apartment, the date of apartment delivery under the contract may be postponed by 60 days. For reasons unrelated to such changes the apartment was not delivered on time but the contractor refused to compensate.
The Court ordered the contractor to compensate the purchasers for the delay and held that the period of delay in delivery of the apartment under the agreement upon changes by tenants does not take effect automatically. Delay in delivery due to circumstances unrelated to the purchaser’s changes will not allow the contractor to make use of the extension stipulated in the agreement. In order to use this extension the contractor must prove a direct connection between the delay in delivery and the changes sought by the purchasers and the burden of proof will be heavy where the apartment is not yet built when the purchasers signed the agreement.