[WSBARP] SWD and "Integration" or "Merger"

[Bickel, Dwight]

My take on the merger issue is that it is clear from the P&SA that the forfeiture of title upon death would be intended to survive the deed. But of course I do not even start to think that the reversion clause will be enforceable in the absence of payment default.

Another angle to the defense is that this is barred by the doctrine of clogging the equity of redemption. This is nothing more than a purchase money loan and a default remedy. I don't have WA authority, but I know ID has specific case law that if there is in fact seller financing, but there is no mortgage documentation, the seller nevertheless retains an enforceable mortgage right.

I recommend characterizing that language in the P&SA as a remedy for default, like giving the seller a deed that could be recorded upon buyer payment default. Of course, that is not enforceable and there are plenty of cases to support that a deed given at that time must be foreclosed as a mortgage. I suspect you would be happy to concede that the seller has a right to foreclosure upon default, but that the decedent and his heirs have the right to pay to cure any default and retain ownership.

Dwight A. Bickel
DwightBickel at hotmail.com

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