Real Estate Contracts And Remedies Flashcards
Memorandum prepared to be covered by the statute of frauds
Does not have to be formal but must include description, price, identification of parties and signature of person to be charged
A check may satisfy
A mailing address is an insufficient description
Exceptions to the statute of frauds
Part performance- payment, possession or improvement that can only be explained by the existence of an agreement
Estoppel- when unconscionable injury would result from denying enforcement of the oral contract after one party has induced to seriously change his position in reliance of the contract
The statute of frauds
The transfer of an interest in real estate is subject to the statute of frauds. At a minimum the statute of frauds requires a written identification of the parties, the signature of the party to be charged, a description of the real estate and the price.
real estate contracts
govern the interest in property
At the moment of contact, an equitable title has transferred to the purchaser. The seller still has legal title but is entitled to enforce the contract and be paid. The purchaser is entitled to complete the contract and get title.
estoppel rule statement
we can use estoppel to get out of the statute of frauds and enforce an oral agreement where there is 1) a promise of the type that is typically relied on 2) detrimental reliance on that promise 3) where equity has to be relied on to prevent injustice
part performance rule statement
we can get out of the statute of frauds when the sale of property was not in writing, when there is payment, possession or improvement that can only be explained by the existence of an agreement
marketable title rule statement
a marketable title to real estate is one which is free from reasonable doubt, and title is doubtful and unmarketable if it exposes the party holding it to the hazard of litigation
do zoning laws affect marketable title?
no,marketable title is about ownership and zoning laws do not tell you what you can do with ownership, zoning laws only deal with what you can’t do with ownership
Title
the formal right of ownership
What is the seller entitled to if the title is not marketable?
the seller is entitled to a reasonable time to fix the defect
generally speaking, until closing.
After closing can a purchaser sue the seller for failure to produce marketable title?
No, at the moment there is a transfer of deed, the seller’s duties have been met
If at the moment of contract an equitable title has been transferred but buyer doesn’t yet legally own title, who then bares the risk of loss in changes to property that occur prior to the transfer of the deed?
by taking equitable title the purchaser bares the risk, even though seller retains possession
caveat emptor
purchaser buys at own risks. the buyer is responsible to make sure they really want to do the deal at said price
exception to caveat emptor
the seller is responsible to disclose hidden but very important facts about the property. concealing a defect is a basis for rescission.
latent defects rule statement
where the seller knows of facts materially affecting the value or desirability of the property which are known or accessible only to the seller and the seller knows that such facts are not known to or within the reach of the diligent attention and observation of the buyer, the seller is under a duty to disclose them to the buyer
