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

[Eric Nelsen]

  1.  You can ask for both specific performance and damages for the portion that is impossible to perform (obtaining the easement). From the WSBA Real Property Deskbook, Vol. 4, Ch. 6 on Specific Performance: "In granting specific performance, a court also may order any additional relief required to make the contracting parties whole. For example, in Carpenter v. Folkerts, 29 Wn.App. 73, 627 P.2d 559 (1981), when the defendants were unable to convey title free from encumbrances, the court ordered the defendants to convey the title they held and to pay damages to cover any fees the plaintiffs might incur in removing the encumbrances....When specific performance is granted against a vendor who is unable to convey all of the property, a court may order conveyance of title with an abatement in purchase price. Streater v. White, 26 Wn.App. 430, 613 P.2d 187, review denied, 94 Wn.2d 1014 (1980)."



  1.  That does sound a lot like an after-the-fact attempt to recharacterize the property. There are multiple possible defenses to a claim that it's community property. Unfortunately, it's all a mess of litigation and delay that might not make it worth it. Realistically, the Buyer should get a quitclaim or other ratification by the spouse anyway, even if it is the separate property of the husband. But, regarding the specific question of defenses to a claim that the wife didn't agree to sell: The four standard categories of defenses are estoppel, authorization, ratification, and acquiescence. In the case law, this is considered a question of "joinder" - did the non-acting spouse join in the transaction in some way even if she didn't actually sign the contract. From the WSBA Community Property Deskbook, Ch. 4.1 on joinder: See Sander, 71 Wn.2d 25 (estoppel); Whiting v. Johnson, 64 Wn.2d 135, 390 P.2d 985 (1964) (authorization); Tombari v. Griepp, 55 Wn.2d 771, 350 P.2d 452 (1960) (ratification); Campbell v. Webber, 29 Wn.2d 516, 188 P.2d 130 (1947) (estoppel); In re Horse Heaven Irr. Dist., 19 Wn.2d 89, 141 P.2d 400 (1943) (ratification); Konnerup v. Frandsen, 8 Wash. 551, 36 P. 493 (1884) (authorization). Of course, that all assumes that the property is in fact community and not H's separate property.


More from the CP Deskbook: "If the nonowning spouse erroneously represents the character of an asset, the owning spouse is not thereby estopped from asserting separate entitlement. See Glaze v. Pullman State Bank, 91 Wash. 187, 157 P. 488 (1916). If the spouses have conspired to defraud or mislead a third person, a different result might be expected. Curtis v. Janzen, 7 Wash. 58, 34 P. 131 (1893)."

The contract is not void. If the property is genuinely community, then the contract is voidable at the option of the non-signing spouse, absent estoppel, authorization, ratification, acquiescence, conspiracy to defraud a third person, etc. More from the CP Deskbook: "The conveyance of community realty by one spouse alone when the other spouse is incompetent has been held void. Rustad v. Rustad, 61 Wn.2d 176, 377 P.2d 414 (1963). Generally, the cases declare that a real property transfer by one spouse alone is voidable by the other spouse. Sander v. Wells, 71 Wn.2d 25, 426 P.2d 481 (1967); see also Harry M. Cross, The Community Property Law in Washington (Revised 1985), 61 Wash. L. Rev. 13 (1986). The same holds true with respect to a contract to sell community realty, which is proscribed just as the conveyance is. See, e.g., Holyoke v. Jackson, 3 Wash. Terr. 235, 3 P. 841 (1882)."

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Samuel M. Meyler
Sent: Tuesday, December 24, 2019 9:45 AM
To: wsbarp at lists.wsbarppt.com; wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Specific Enforcement? Void Agreement? Happy Holidays!

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

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