How do I formally document the buyer’s failure to perform so I can terminate the deal without getting sued? – North Carolina

Short Answer

In North Carolina, the safest way to document a buyer’s failure to perform is to follow the contract’s default-and-termination steps in writing: identify the missed obligations, give any required notice and cure period, set a firm deadline, and keep proof of delivery. If the contract makes time “of the essence” (or the parties later agree in writing to firm dates), a missed closing date can support termination; if not, a written notice setting a new deadline and stating the consequences often matters. The goal is a clean paper trail that shows a clear breach, a fair chance to cure (if required), and a clear termination date.

Understanding the Problem

Under North Carolina real estate practice, when a contract has been assigned to an end buyer and the end buyer keeps missing closing dates or other required steps, the key question becomes: can the seller-side party formally declare the buyer in default and terminate the deal based on nonperformance without triggering a claim for wrongful termination? The decision point is whether the buyer’s missed deadlines or other failures qualify as a contract default that permits termination, and what written notice must be given (and how it must be delivered) before ending the contract.

Apply the Law

North Carolina generally treats a real estate purchase contract like any other contract: a party can terminate for a material breach if the contract allows termination for that breach and the terminating party follows any notice-and-cure requirements in the agreement. Many disputes come down to (1) whether the buyer’s failure is truly a default under the contract, (2) whether “time is of the essence” applies to the closing date or other deadlines, and (3) whether the terminating party gave clear written notice, an opportunity to cure if required, and proper delivery with proof.

Key Requirements

Clear default tied to the contract: The written record should point to specific obligations the buyer failed to meet (for example, failing to close by an agreed date, failing to deliver required funds, failing to sign closing documents, or failing to satisfy a condition the buyer promised to satisfy).
Proper notice (and cure opportunity if required): If the contract requires notice, a cure period, or a specific method of delivery, the notice should track those requirements closely and set a firm cure deadline.
Proof and consistency: The file should show consistent communications, no mixed messages about extensions, and objective proof of nonperformance (missed deadlines, lender/closing communications, escrow records, and delivery confirmations).

What the Statutes Say

N.C. Gen. Stat. § 47G-5 (Notice of default and intent to forfeit) – For certain option-to-purchase arrangements, North Carolina law requires a written notice of default and at least a 30-day cure period before forfeiture, with specific delivery methods.
N.C. Gen. Stat. § 47H-4 (Notice of default and intent to forfeit) – For contracts for deed, North Carolina law requires a detailed notice of default and intent to forfeit, including a cure deadline of at least 30 days and specific delivery methods.

Analysis

Apply the Rule to the Facts: Here, the end buyer repeatedly missed agreed closing date(s) and has not performed required contract obligations. The strongest documentation usually includes (1) a timeline showing each agreed closing date and any written extensions, (2) written demands identifying what the buyer must do to close (funds, signatures, conditions), and (3) a final written notice that sets a firm deadline to perform and states that failure to perform by that deadline will be treated as default and the contract will be terminated. If the contract includes a notice-and-cure process, following it precisely is often the difference between a clean termination and a dispute.

Process & Timing

Who sends the notice: The seller-side party to the contract (or the seller’s attorney/agent authorized under the contract). Where: Delivered to the buyer at the notice address stated in the contract (and any other address the contract requires). What: A written “Notice of Default and Demand to Perform” (or similarly titled letter) that (a) lists each missed obligation, (b) cites the contract sections being enforced, (c) states whether time is of the essence (if the contract already says so, quote that clause; if not, avoid overstating it), (d) gives any required cure period, and (e) states the exact date and time by which performance must occur.
Build the evidence file at the same time: Collect the contract, assignment documents, addenda, written extensions, closing attorney communications, lender/escrow communications, and a dated log of attempted scheduling. Keep objective proof (emails, texts exported to PDF, certified mail receipts, delivery confirmations).
Terminate in writing if the deadline passes: If the buyer still does not perform, send a short written “Notice of Termination” referencing the prior default notice, stating the deadline that passed, and confirming the contract is terminated. If earnest money or other deposits are involved, follow the contract’s escrow/disbursement procedure and avoid self-help releases without the required signatures or process.

Exceptions & Pitfalls

“Time is of the essence” problems: If the contract does not make time of the essence for closing, a missed closing date may not automatically end the deal. Repeated informal extensions can also weaken a termination position. A written notice that sets a final deadline and ties it to the contract helps reduce this risk.
Notice method mistakes: Many contracts require notice to be sent a specific way (mail, email, hand delivery, or to a specific address). Sending notice to the wrong address or only by an unapproved method can create an argument that no valid default was declared.
Unclear default description: A vague “buyer failed to perform” letter invites a dispute. A stronger notice lists each missing item (funds, signatures, conditions) and attaches or references supporting communications.
Wrong legal framework: Some transactions are not standard purchase contracts (for example, certain option-to-purchase or contract-for-deed arrangements). Those can have statutory notice and cure requirements, including minimum cure periods and specific delivery rules. See, for example, the notice requirements in N.C. Gen. Stat. § 47G-5 and N.C. Gen. Stat. § 47H-4 when those chapters apply.
Deposit disputes: Termination often triggers disagreement about earnest money or other deposits. Following the contract’s escrow instructions and documenting the basis for any claim reduces the chance of a later allegation of bad faith.

Conclusion

To formally document a buyer’s failure to perform in North Carolina and reduce the risk of a wrongful-termination claim, the file should show a clear contract default, a written notice that follows the contract’s notice method, and a firm cure deadline (if the contract requires one). If the buyer still does not perform by the stated deadline, a written termination notice should follow promptly. The most important next step is to send a written default notice that lists the missed obligations and sets a specific cure deadline consistent with the contract.

Talk to a Real Estate Attorney

If a buyer keeps missing closing dates or other contract deadlines and termination is on the table, our firm has experienced attorneys who can help document the default, follow the contract’s notice requirements, and protect the record for a potential dispute. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.