[WSBARP] Specific Enforcement? Void Agreement? Happy Holidays!

[Samuel M. Meyler]

Listmates,

 

As we head into the holiday, I am in need of some feedback on a couple of
issues.  

 

Buyer and Seller enter into a Real Estate Purchase and Sale Agreement
("PSA").  Seller had access to waterfront and a dock that was on a
neighbor's property with no easement of record.  Seller represented that
they have always had use of the waterfront access and dock and will obtain
an easement from the neighbor.  Seller has had the property listed for an
extended period of time, has gone through multiple listing agents and
multiple price drops so they are motivated to sell.  The obligation to
obtain an easement is added to the PSA via addendum.  Seller than takes no
action to obtain the easement until a week before closing and is unable to
secure it by closing.  Buyer asks for a reduction in the price.  Seller
refuses to reduce the price.  Buyer deposited all funds with escrow and
executed all documents necessary to close.  Seller refused to close the
transaction.  Buyer initiates an action for specific performance and breach
of contract.  

 

First Question:  The property could be transferred to the buyer without the
easement, but the term that obligates the seller to obtain the easement from
a third-party neighbor is, nevertheless, a part of the contract.  Is
specific performance available as a remedy to force the sale of the property
without the easement, even though the PSA contemplates the action of the
third-party neighbor?  In other words, is specific performance available to
force the sale, subject to seeking damages for the difference in value of
the property without the easement?  

 

Second Question:  The Seller, a married man, inherited the property.
Listing details indicated that only the husband owned the property and the
PSA only identifies the husband as the seller.  Seller completed Form 17 and
indicated that they had the legal authority to sell the property.  In an
effort to get out of the deal, wife now claims community property and claims
that the agreement is void because she never signed the PSA.  There is a
presumption that the parcel is separate property pursuant to RCW 26.16.010.
I am contemplating amending the complaint to add a declaratory judgment
claim seeking a declaration that the property is separate property as well
as a claim for fraud by the husband and possible civil conspiracy against
both for conspiring to defraud the buyer by making unfounded claims.  Is
there any legitimacy to the claim that the PSA is void?  How might you
combat this?  

 

 

Samuel M. Meyler

Meyler Legal, PLLC 

1700 Westlake Ave. N., Ste. 200

Seattle, Washington 98109

Tel:  206.876.7770

Fax:  206.876.7771

Email:   <mailto:samuel at meylerlegal.com> samuel at meylerlegal.com

  

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