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Property Contract of Sale - Statute of Frauds holds that generally the first step to acquiring title is the contract which

Defines the rights and liabilities of the grantor and grantee. RPAPL 294(5).


Under the Statute of Frauds, the contract of sale must be

1- Signed by the party to be charged, and
2- It must contain all of the material terms of the agreement.


What are the material terms of an agreement related to the sale of Real Property

Such terms include:
1- Purchase price
2- Time and Terms of Payment
3- Required Financing
4- Closing Date
5- The quality of title to be conveyed
6- Allocation of risk of loss during the sale period
7- Adjustments for taxes and utilities


Parties in New York may enter into an enforceable contract solely

via Email


Failure to include the purchase price in a property contract will

render the contract unenforceable


The writing in a sale of property contract must set forth

The entire contract with reasonable certainty: if the contract is incomplete and it is necessary to resort to parol evidence to ascertain what was agreed to, the remedy of specific performance is not available


New York permits a contract to be recorded, which

puts a subsequent purchaser on constructive notice for a period of 30 days after the date set for closing in the recorded contract


The Doctrine of Part Performance may be invoked when

A writing does not exist related to the contract of real property. The Doctrine of Part Performance may be invoked in equity to specifically enforce the oral contract


The Doctrine of Part Performance applies to prevent what defense?

To overcome the Statute of Frauds defense in an action for specific performance of the oral contract.

It would amount to fraud to allow one party, insisting on the Statute of Frauds, to escape performance after permitting the other party, acting in reliance, to substantially perform.


The test for Past Performance must prove

1- Consist of unequivocal acts by the party relying upon the oral agreement;
2- Circumstances that indicate the existence of an agreement;
3- a change in position to his or her detriment, and
4- Circumstances that make it impossible or impractical to return the parties to the status quo.

Additionally, partial performance must have been known to and permitted by the party against whom it is asserted.


What are the three types of performance by the purchaser considered to show part performance

1- Payment in whole or in part;
2- Taking possession; and
3- Making substantial improvements

In some jurisdictions, taking possession or making substantial improvements alone may be sufficient, although other jurisdictions require all three elements


New York view on part performance for substitute for satisfying the Statute of Frauds

In New York, it is almost impossible to achieve part performance sufficient to substitute for satisfying the Statute of Frauds. New York, like most states, requires a performance that is unequivocally refers to an agreement to convey the property, and the buyer's act alone must conclusively point to a sale of realty without resort to oral testimony


When is an oral agreement to transfer property sufficient to substitute for the Statute of Frauds

An oral agreement to transfer property made in open court and transcribed by a court reporter will substitute for a writing for the purpose of satisfying the Statute of Frauds


In order to satisfy the Statute of Frauds in a Real Property Contract

The writing must designate the parties, identify and describe the land to be conveyed, and state the essential terms of the purchase price, i.e., identify the amount, time, and manner of payment


The description in both the contract and the deed must identify the property by:

1. Reference to the block and lot number in the recording system; or
2- Description by metes and bounds. A metes and bounds description is a description of land whose boundaries are indicated by a series of "calls," each of which is a course or direction and a distance, starting at a beginning point and closing at the same point.
3. Description by natural or artificial monuments


Where inconsistencies exist in a legal description, preference is given by law in the following order:

1- Natural monuments over artificial monuments;
2- Monuments (a stone wall) over stated courses;
3- Stated courses over stated distances; and
4- A general description ("Specific Address) will always defer to any of the aforementioned descriptions

A description that fails to describe an enclosed parcel renders title unmarketable.


Conditions in the Contract (Real Property)

If a realty contract requires a particular event to occur, but no party promises it will occur, the language is construed as a condition to a party's performance of the contract.


Use of what words in a contract for real property indicate a condition exists

words such as "unless" or "until" indicate the existence of a condition; the contact is "subject" to (specific event)


Waiving a condition in a real property contract can be done by whom?

if a condition is inserted in the contract for one party's benefit, then that party can waive the condition


Time of Closing

The real property contract usually contains a "closing" date, which is the date when the purchase price is paid and the deed is delivered.


Failure to include a closing date

is not fatal to the contract, and a reasonable time for the closing can be implied. A closing date in real property contract is not a material term, and the closing may be adjourned to a reasonable future dates unless time is made "of the essence."


When the time for closing is made "of the essence"

The closing date becomes a "hell or high water" clause and is a material and unalterable part of the contract. If either party is unable to close on the specified "law day" by tendering a proper title or by paying the full purchase price, then the contract is deemed breached.


If the contract provides that the closing is to take place "on or before (specified date) " or "no later than (specified date)"

Then these terms are not sufficient to make time of the essence. The mere designation of a particular date upon which a thing is to be done does not result in making that date [time of] the essence of the contract


Risk of Loss (Generally) in a Real Property Contract at common law, and today in a majority of the states under the doctrine of equitable conversion

Equitable title passes to the buyer upon signing the contract, and absent a contrary provision in the contract, if the property is destroyed between the time of contracting and the transfer of the deed and the destruction is not caused by either party, the buyer bears the loss. Because the seller had only a personal property interest in the balance of the purchase price


Risk of Loss (Generally) in a Real Property Contract in New York, which is the minority view

Places the risk of loss upon the seller until the buyer takes either title or possession. [General Obligations Law 5-1311]. Risk of loss stays with the seller under the act because the seller is in the best position to obtain insurance against loss or damage.


In New York, if the real estate loses value because of material destruction through no fault of either party

The contract is not enforceable by the seller. However, the buyer may enforce the contract with an abatement in the purchase price. [General Obligations Law 5-1311(1)(a)]


In New York, if an immaterial part of the premises is destroyed or taken by eminent domain

the contract is enforceable by either party with an abatement in the purchase price. [General Obligations Law 5-1311(1)(a)]


In New York and Multi-state, unless the contract provides otherwise, the buyer bears the risk that

the property value will be reduced by a change in the law between the execution of the contract and the closing of title


Seller's Insurance Proceeds, if the property is damaged through no fault of either party between the contract and closing dates

will reduce the buyer's purchase price to the extent the seller receives insurance proceeds. However, New York does not apply this view.


What is the New York view related to Seller's Insurance Proceeds, if the property is damaged through no fault of either party between the contract and closing dates

New York will credit the purchaser with the insurance proceeds if the purchaser was obligated to, and did, pay the insurance premiums