Selling my house part 2

[justin]

Can't believe I'm still posting on this, but I need to keep my count up.

Even if MJ testifies truthfully, he can simply say "Yes, I told the buyer
many times he had a deal and yes, I took his money. Then I changed my mind."
Case dismissed IMHO.

Based on MJ's hypothetical testimony as you have presented it, I would say he had admitted that a contract was formed. "I changed my mind" is not a valid defense to a contract. IMHO and the opinion of 93.5% of all courts (there's always those crazy activist judges that you can never count on to interpret the law).

Well, I'm no masochist, so let's not migrate the discussion over to the Rule Against Perpetuities or the Erie Doctrine...

Enough Jay, enough! I give up!

 

[SteveR]

You guys are starting to make my head hurt with all this lawyer talk.

Where is MJ anyway? He could clear up a ton of stuff here with a brief update.

 

[frayne]

You guys are starting to make my head hurt with all this lawyer talk.   

Where is MJ anyway?  He could clear up a ton of stuff here with a brief update. 

I think he sold his house for the extra $60K and moved on.

 

[justin]

If I were MJ, I might not comment much on the facts of the transaction just yet. Could be used as evidence against him later

 

[Martha]

Isn't this fun Justin?

The Minnesota statute of frauds:

513.01 No action on agreement.

No action shall be maintained, in either of the following cases, upon any agreement, unless such agreement, or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party charged therewith:

(1) every agreement that by its terms is not to be performed within one year from the making thereof;

(2) every special promise to answer for the debt, default or doings of another;

(3) every agreement, promise, or undertaking made upon consideration of marriage, except mutual promises to marry;

(4) every agreement, promise or undertaking to pay a debt which has been discharged by bankruptcy or insolvency proceedings.

For real estate:

513.04 Conveyance of interest in land except up to one-year lease.

No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the parties creating, granting, assigning, surrendering, or declaring the same, or by their lawful agent thereunto authorized by writing. This section shall not affect in any manner the power of a testator in the disposition of real estate by will; nor prevent any trust from arising or being extinguished by implication or operation of law.

Substantive law, not evidenciary. Inotherwords, if there isn't a writing and their isn't another legal theory like part performance, the action would be dismissed on a motion to dismiss. Who cares what was said in a deposition.

As statutes of frauds are a matter of state law, YMMV.


Edit: North Carolina statute of frauds for real estate provides that oral agreements are void:

§ 22‑2. Contract for sale of land; leases.

All contracts to sell or convey any lands, tenements or hereditaments, or any interest in or concerning them, and all leases and contracts for leasing land for the purpose of digging for gold or other minerals, or for mining generally, of whatever duration; and all other leases and contracts for leasing lands exceeding in duration three years from the making thereof, shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized. (29 Charles II, c. 3, ss. 1, 2, 3; 1819, c. 1016, P.R.; 1844, c. 44; R.C., c. 50, s. 11; 1868, c. 156, ss. 2, 33; Code, ss. 1554, 1743; Rev., s. 976; C.S., s. 988.)

 

[justin]

Martha,

It seems the NC law, in particular, does state that contracts for the sale of land are void if not evidenced by a writing.

In contrast, the Minnesota statute you cited (513.04) deals with the writing requirements for the conveyance of title (usually called the "deed" around here). This statute does not, on its face, deal with the contractfor the conveyance of land as I read it (the purchase/sale agreement which is executory in nature). I am not knowledgeable of Minnesota case law on this issue. Maybe the judges have interpreted the statute to require a writing for the sales contract as well as the deed itself.

The issue we were discussing here was the validity of a purchase/sale agreement, not the conveyance of title itself. If Minnesota law were to apply, it looks like 513.04 wouldn't control the purchase/sale agreement at all. Your thoughts?

I guess with anything in a country of 50 different jurisdictions with different laws in each, YMMV... Anybody want to look up the NY law for "fun"?

 

[Martha]

Justin, sorry, pasted the wrong statute:

513.05 Leases; contracts for sale of lands.

Every contract for the leasing for a longer period than one year or for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party by whom the lease or sale is to be made, or by the party's lawful agent thereunto authorized in writing; and no such contract, when made by an agent, shall be entitled to record unless the authority of such agent be also recorded.

HIST: (8460) RL s 3488; 1986 c 444

I absolutely refuse to look up New York. But I never have heard of a state with a different SofF on real estate.

EDIT. OK, heck with it. According to www.findlaw.com, New York's statute of frauds for real estate:
§ 5-703. Conveyances and contracts concerning real property required
to be in writing. 1. An estate or interest in real property, other than
a lease for a term not exceeding one year, or any trust or power, over
or concerning real property, or in any manner relating thereto, cannot
be created, granted, assigned, surrendered or declared, unless by act or
operation of law, or by a deed or conveyance in writing, subscribed by
the person creating, granting, assigning, surrendering or declaring the
same, or by his lawful agent, thereunto authorized by writing. But this
subdivision does not affect the power of a testator in the disposition
of his real property by will; nor prevent any trust from arising or
being extinguished by implication or operation of law, nor any
declaration of trust from being proved by a writing subscribed by the
person declaring the same.
2. A contract for the leasing for a longer period than one year, or
for the sale, of any real property, or an interest therein, is void
unless the contract or some note or memorandum thereof, expressing the
consideration, is in writing, subscribed by the party to be charged, or
by his lawful agent thereunto authorized by writing.
3. A contract to devise real property or establish a trust of real
property, or any interest therein or right with reference thereto, is
void unless the contract or some note or memorandum thereof is in
writing and subscribed by the party to be charged therewith, or by his
lawfully authorized agent.
4. Nothing contained in this section abridges the powers of courts of
equity to compel the specific performance of agreements in cases of part
performance.

Remember my much earlier post about every law has exceptions (part performance, promissory estoppel). And I am not a New York lawyer. Refer to standard disclaimer below.

 

[haha]

Justin, sorry, pasted the wrong statute:

  513.05 Leases; contracts for sale of lands.

Every contract for the leasing for a longer period than one year or for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party by whom the lease or sale is to be made, or by the party's lawful agent thereunto authorized in writing; and no such contract, when made by an agent, shall be entitled to record unless the authority of such agent be also recorded.

HIST: (8460) RL s 3488; 1986 c 444

I absolutely refuse to look up New York.  But I never have heard of a state with a different SofF on real estate. 

EDIT.  OK, heck with it.  According to www.findlaw.com, New York's statute of frauds for real estate:
§ 5-703. Conveyances  and  contracts concerning real property required
  to be in writing. 1. An estate or interest in real property, other  than
  a  lease  for a term not exceeding one year, or any trust or power, over
  or concerning real property, or in any manner relating  thereto,  cannot
  be created, granted, assigned, surrendered or declared, unless by act or
  operation  of  law, or by a deed or conveyance in writing, subscribed by
  the person creating, granting, assigning, surrendering or declaring  the
  same,  or by his lawful agent, thereunto authorized by writing. But this
  subdivision does not affect the power of a testator in  the  disposition
  of  his  real  property  by  will; nor prevent any trust from arising or
  being  extinguished  by  implication  or  operation  of  law,  nor   any
  declaration  of  trust  from being proved by a writing subscribed by the
  person declaring the same.
    2. A contract for the leasing for a longer period than  one  year,  or
  for  the  sale,  of  any  real property, or an interest therein, is void
  unless the contract or some note or memorandum thereof,  expressing  the
  consideration,  is in writing, subscribed by the party to be charged, or
  by his lawful agent thereunto authorized by writing.
    3. A contract to devise real property or establish  a  trust  of  real
  property,  or  any  interest therein or right with reference thereto, is
  void unless the contract or  some  note  or  memorandum  thereof  is  in
  writing  and  subscribed by the party to be charged therewith, or by his
  lawfully authorized agent.
    4. Nothing contained in this section abridges the powers of courts  of
  equity to compel the specific performance of agreements in cases of part
  performance.

Remember my much earlier post about every law has exceptions (part performance, promissory estoppel).  And I am not a New York lawyer.  Refer to standard disclaimer below.

Martha, are you sure you want to retire? Here you are on a 2 week train trip, and look how you spend your time. 

Ha

 

[justin]

Re: Selling my house part 2

Martha,

I wonder if the law is the same in California and Florida? Not that you need to look them up, but it would be interesting to find out. We have a lot of forum members in those states that might be interested in knowing the law for their state.





(I'm just baiting you now. Please don't look those up while you are "relaxing" on "vacation". )

 

[Nords]

MJ, see what you started?

Will you kindly end the suspense on this thread before the lawyers put the rest of the board to sleep?

 

[MJ]

My 1st naive and foolish mistake as an amateur home seller was to pose the original question on a public forum. With too many self righteous and judgemental people who seem to want to jump to quick conclusions, I am not about to make another mistake by commenting any further and certainly not before the sale.

Even as a scumbag man of "little or no" honor, I can only tolerate one wound per thread.

 

[frayne]

Drum roll please

 

[73ss454]

My 1st naive and foolish mistake as an amateur home seller was to pose the original question on a public forum. With too many self righteous and judgemental people who seem to want to jump to quick conclusions, I am not about to make another mistake by commenting any further and certainly not before the sale.

Even as a scumbag man of "little or no" honor, I can only tolerate one wound per thread.

No that was your second mistake.

 

[frayne]

And the beating continues. :

 

[tryan]

Handshakes are only binding if you spit in your hand first.

MJ, sounds like you under priced your house and now there is - perhaps - some question of liability if you upset one of the buyers (I do not see this BTW).  Looks like a realtor's fee would have been well worth it (in hind sight).

That being said ... offers are only worth the paper they're printed on.  And you never cashed the check ... heck, you could destroy the check and be done with it.

The last bidding war I had was across 3 buyers and lasted about a week ... all verbal nothing in writing.

Keep playing each buyer against the other and maximize your profit ... it's called the law of supply n'demand.  Then get it in writing.

Good luck!

 

[runnerr]

I agree with a bidding war but once you accepted the deposit check the bidding should stop. Why did you accept the deposit in the first place if you did not intend to sell to this party? I guess I am old school and proud of it but even in this cut throat world once I give my word it is as good as gold. It is a sad to believe that many in this world are just the opposite. All I can do is pity you, but don’t forget about the boomerang effect: what you throw out there will sooner or latter come back to hit you. Something tells me you have the extra money all ready in the bank. To bad your loss.

 

[astromeria]

I'm not a lawyer--or an ethicist--but the 2nd to last house I sold started a bidding war. I was sitting on 6 checks for a couple of days till I picked one to keep and make a deal with in writing. I had 2 offers for the top amount and picked one based on their high motivation (first check received, matched all subsequent offers). The sale went through wihtout a hitch, though the other buyers with the same offer were pissed. They had sent us a chatty note with pictures extolling their virtues and hobbies. But they didn't know they were dealing with 2 INTPs, utterly unmoved--indeed, somewhat offended--by such manipulation appeals to emotion 

 

[haha]

Overall, I think a few people need to relax. MJ is talking about $60,000. At 4% that would likely cover his Medicare and Medigap, forever Or all the cable and cool electronics he wants each and every year in perpetuity.

It's not like any of these people are his friends, or family or lovers. Just "people" who would likely seek their own best legal or arguably legal solution.

My own rule is I try not to jump to conclusions, especially when here are several legitimate ways to look at a situation. It is always possible that one of them may be more favorable to me than the others. 

Ha

 

[TomSimpsonAZ]

Hello, this is my first post. I was content just reading this forum because there seems to be more information than I can take in already without running off at the mouth, but I couldn't help but jump into this topic and get on my soap box.

While it is pretty obvious that you can't buy a house properly with a personal check and a handshake(we have created plenty of other rules to keep realtors in business), it does get the point across.

This guy could have cancelled his check if something strange happened to your house after he gave it to you or he noticed something he didn't like.

So....I really think you could sit down with the buyers and work something out. I believe the 2nd buyer is the one who truly wants the house badly enough while the first buyer may just be looking for profit. Maybe you can all sit down and figure out a way for you to get a decent amount of money(more than you were originally asking even which is a nice bonus), the 2nd buyer gets a house they desire, and someone puts a little coin in the first buyers pocket. While you may not come to a conclusion that works for everyone, it would be worth a try and there is a good possibility of coming away with gratification on many levels.