Continued Performance Clause Held Unenforceble
The Real Estate and Construction Blog summarizes a Califonia appellate court recently held a "continued performace clause" is not enforceable when the owner commits a material breach.
The Real Estate and Construction Blog points out that the decision eviscerates the purpose of the clause: "To the extent Barton Properties holds that a continued performance clause is unenforceable when the owner's breach is material, and remains enforceable when a party's breach is minor or immaterial, such clauses would add little or nothing to the parties' legal relationship that is not already part of California law. "
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