Statute of Frauds

Part performance as exception to the statute of frauds

The Idaho Supreme Court reaffirmed the traditional rule that part performance of a real estate agreement can constitute an exception to the statute of frauds. If that is the case, a contract that would otherwise be unenforceable because it does not comply with the statutory writing formalities may be enforced nonetheless. Hoke v. NeYada, 387 P.3d 118 (Idaho 2016). The case involved a lease with an option... Read more about Part performance as exception to the statute of frauds

Fee simple absolute found despite language of "in trust" and "for the uses, purposes" of the YWCA

In a standard application of traditional estates doctrine, the Massachusetts Appeals Court has found a fee simple absolute despite language in the grant to the YWCA stating that the property was given "in trust, nevertheless, for the uses, purposes and trusts aforesaid." Young Women's Christian Ass'n, Inc. of Boston, Inc. v. Young Women's Christian Ass'n of Philadelphia, Inc., 90 Mass. App. Ct. 1119, 2016 WL 7162737 (Table) (Mass. 2016).

Traditionally any language in a conveyance of a fee...

Read more about Fee simple absolute found despite language of "in trust" and "for the uses, purposes" of the YWCA

Mortgage of joint tenancy interest does not encumber interests of joint tenants who do not join the deal

In Bac Home Loans Servicing, L.P. v. Savankham, 2016 Mass. LCR LEXIS 86 (Mass. Land Ct. 2016), a mother gave a bank a mortgage on her joint tenancy interest in property she shared with her two children. The children did not know about or participate in the transaction. Apparently, the bank thought it was getting a mortgage on the whole property rather than just the joint tenancy interest of one joint tenant and...

Read more about Mortgage of joint tenancy interest does not encumber interests of joint tenants who do not join the deal

Informal border change by acquiescence

The Utah Supreme Court has affirmed and applied the doctrine of "boundary by acquiescence" under which a border is set informally when neighbors recognize a line between their properties. Q-2 LLC v. Hughes, 368 P.3d 86 (Utah 2016). The court noted that title shifts at the point when the parties act to satisfy the doctrine not when the border is recognized by a court. Establishment of boundary by acquiescence in Utah requires (1) occupation up to a visible line marked by monuments, fences, or buildings; (2) mutual acquiescence in the line as a boundary; (3) for at least 20 years; (4) by...

Read more about Informal border change by acquiescence

Massachusetts courts hostile to easement by necessity doctrine

In Kitras v. Town of Aquinas, 49 N.E.3d 198 (Mass. 2016), the Supreme Judicial Court of the Commonwealth of Massachusetts (SJC) refused to recognize easements by necessity for landlocked parcels. Massachusetts accepts the usual presumption that one who creates a landlocked parcel intends to give the owner of the landlocked parcel an easement over remaining land of the...

Read more about Massachusetts courts hostile to easement by necessity doctrine

Buyer may sue seller for fraudulent failure to mention flooding problem despite "as is" clause in real estate sales contract

When real estate contracts contain an "as is" clause or state that the buyer is not relying on any oral statements made by the seller, some courts hold that the buyer cannot sue the seller for fraud even if the seller lied about the condition of the premises or failed to reveal material facts any reasonable buyer would want to know. But other courts allow claims for fraud on the ground that sellers cannot be allowed to immunize themselves from liability for fraud by contract language. In...

Read more about Buyer may sue seller for fraudulent failure to mention flooding problem despite "as is" clause in real estate sales contract

No statute of limitations bars a claim to set aside a forged deed and subsequent mortgage

The New York Court of Appeals had reaffirmed the traditional rule that forged deeds do not convey title. It has clarified that no statute of limitations bars a challenge to a forged deed even if the purported owner has subsequently transferred interests in the land to a subsequent mortgagee who had no notice of the forgery. Faison v. Lewis, 32 N.E.3d 400 (N.Y. 2015). The Court ruled that the third party purchaser is not a "bona fide...

Read more about No statute of limitations bars a claim to set aside a forged deed and subsequent mortgage