I. TRANSFER OF LAND
a. The Contract for the Sale of Land
Ø Broker’s Role: A broker’s contract gives him the exclusive right to sell the property at the price or terms in the contract or at any other price or terms agreed on by the parties.
Ø Attorney’s Role: An attorney often is employed for various tasks, and an attorney cannot represent both the buyer and seller because they will usually be held to be unethical due to the conflict of interest.
Ø Written Contract Required: The statute of frauds requires that a contract for the sale of land be in writing and signed by the party to be charged. The writing must include all the essential terms, i.e. parties identification, property description, and terms of sale.
b. Oral Contracts
i. Part Performance: Equity court may enforce an oral contract for the sale of land under certain circumstances. The doctrine is applicable only in a suit in equity for specific performance not monetary damages.
1. Acts of “unequivocal reference to a contract.” : Most courts require that the actions make sense as being done pursuant to a contract to give reliable evidence of the contract.. (ie. Pays in full and takes possession and makes improvements) The court assumes the buyer would not do these acts without a contact. (EXAM: parties enter into oral contract –> 1) SOF states general unenforceable 2) exception for part performance that unequivocally references a contract.) Hickey v. Green
2. Contracts to devise: applied to oral contracts to devise land at death in exchange for services. Courts require that the proof of the promise is clear and convincing, the promise relied to his detriment, and failure to enforce would be unconscionable. (A alleged that T promised to devise A his house if A moved in and looked after T for the rest of his life. T dies. A now wants the land)
ii. Estoppel: In the few state where part performance is not recognized, estoppel is used to enforce oral contracts where unconscionable injury would occur to a person who detrimentally relied on the contract.
iii. Revocation: A written contract can be revoked by an oral agreement.
c. Marketable Title: Absent a provision to the contrary, it is implied in a contract that the seller is giving the buyer good and marketable title. A marketable title is one reasonably free from doubt, one wh
RULE – old rule stating that the seller did not have to disclose any defects in the condition of the premises unless fraudulently concealed.
1. Exception – If the seller creates the condition and the buyer is highly unlikely to discover, the contract can be rescinded. Stambovsky v. Ackley.
ii. Duty to Disclose – MODERN RULE – The seller must disclose all known material defects to the buyer. Johnson v. Davis.
1. Off-site conditions – sometimes a seller may be required to reveal the existence of off-site conditions that might affect market value (ie. Hazardous waste)
iii. Risk of Loss – In between the two-step process of sale and closing various problems may arise that depend on who has “title.”
Equitable Conversion – treats the buyer as having title to the property. The doctrine treats the buyer as the equitable owner and the seller as having a security interest for payment of the purchase price. (On July 1, O contracts to
