[WSBARP] Litigation and Statute of Frauds

Tue Apr 18 16:40:56 PDT 2023

Pfui. Garbage defense. Assertion of the existence of a PSA is an affirmative defense against the eviction because it evades or negates elements necessary to prove UD—whether the occupant is a “tenant” under a “rental agreement” as defined in Title 59. The burden of proof on affirmative defenses is with the defendant. See Kastanis v. Educ. Emps. Credit Union, 122 Wash.2d 483, 493, 859 P.2d 26 (1993) (the defendant bears the burden of proof “only where it asserts an ‘affirmative defense’ ”); Locke v. City of Seattle, 133 Wash.App. 696, 713, 137 P.3d 52 (2006) (“The burden of proof is ... placed upon the party asserting the avoidance or affirmative defense.”). The fact that he isn’t making a counterclaim is irrelevant.

That said, a contract to purchase real property does not need to be in writing, even though a conveyance or lien (or real estate commission agreement) does—so long as its terms must be completely performed within one year. See the blog post by Babak Shamsi on Beresford Booth’s website<https://beresfordlaw.com/what-is-the-statute-of-frauds/#:~:text=Washington%20State%20affords%20great%20flexibility,to%20have%20an%20enforceable%20agreement.>. So I think the occupant can testify to the alleged contract and how it was formed and what its terms are. (All subject to the trier of fact’s credibility determination, of course, and subject to denial by the plaintiff.)

Might be able to trip them up immediately if they testify to any term that could or would require performance more than a year after formation. If the agreement was for payments to be made over multiple years, that violates RCW 19.36.010(1)<https://app.leg.wa.gov/RCW/default.aspx?cite=19.36&full=true#19.36.010>. (But note case law about saving an oral contract to purchase real estate by occupancy plus partial performance.)

Since this would be a pretty complex lie to pull off, I’d depose/examine the occupant concerning all the specifics on when and how the agreement was formed—on the phone? in person? when? and then question all the elements of formation and performance – offer, acceptance, consideration, purchase price, payment terms, interest rate, type of deed conveyance, escrow, title insurance company, closing date, any financing required, contingencies, etc., etc., until they’re desperately making up as many random clauses as they can. Ask them if the seller recited the legal description during their completely oral agreement (no emails, no texts, nothing in writing concerning a contract to buy?).

Ask them about contextual/circumstantial evidence of the existence of a contract. After the agreement was made, then what? Did they make payments? Any evidence of those payments? Checks have “installment payment on contract” written on them, or anything like that? Emails from the landlord treating him as a purchaser and not a tenant? Did they make any demands as a tenant, like getting the plumbing repaired or whatever? Ever invoke tenant protections even though supposedly buying the property?

Re the original question about statute of frauds at trial—I’d file a Motion in Limine asking the Court to exclude all evidence/testimony suggesting the existence of a contract in violation of RCW 19.36.010(1). At the least, this puts the issue at the forefront of the judge’s mind.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Paul Neumiller
Sent: Tuesday, April 18, 2023 3:53 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Litigation and Statute of Frauds

NJP attorney is arguing that they don’t have to prove a purchase and sale agreement because title is not the issue.  NJP is arguing that they are presenting the testimony that T is buying the property as a defense that Plaintiff must overcome because Plaintiff has the burden of proof and T is not asserting it as a counter-claim.  Any thoughts?  I’m arguing it is two sides of the same coin.

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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Stromberg, Spencer
Sent: Tuesday, April 18, 2023 3:00 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] Litigation and Statute of Frauds

I agree with Kelby. I represented a defendant in a UD case several years back who claimed he had an agreement to buy the property, and we lost because we didn't satisfy the statute of frauds. My client had an email or two and his testimony that it was a "rent to own" situation (plaintiff was his sister!). Is it too late for SJ? If discovery hasn't produced a signed agreement that adequately identifies the property and the terms of sale, you should win on SJ. At trial, I don't think there's much weighing of evidence - there's either a written contract or there isn't. If there is a written contract, the judge should then be the one to weigh the evidence as a matter of law only in the event there is some question about whether a written agreement adequately describes the property or the terms.

Spencer A. W. Stromberg
Attorney at Law

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On Fri, Apr 14, 2023 at 11:36 AM Kelby Derenick <kelby at derenicklaw.com<mailto:kelby at derenicklaw.com>> wrote:
I would think that whether a contract exists for the sale of the property would be a question of fact.  So, if you are representing the Plaintiff in the trial, when your client testifies and in anticipation of what the Defendant is going to argue, have the Plaintiff provide testimony that there was no contract for the
sale of the property.  Then, after the Defendant is finished with presenting his/her defense and counterclaims and introduces whatever documents into evidence, you can recall your client to provide rebuttal testimony to address whatever the Defendant introduced.  After the evidentiary part of the trial is over, if there was no evidence of a contract, move the court for dismissal of that counterclaim under CR 41 or CR 50 Judgment as a Matter of Law if there is a jury (for non-unlawful detainer trials).

If the judge won't dismiss it, then just argue at closing that the Defendant cannot prevail on the counterclaim because there was no contract and the statute of frauds case law requires a contract (cite and argue statute of frauds case law).

Kelby J. Derenick
Attorney

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On Thu, Apr 13, 2023 at 4:07 PM Paul Neumiller <pneumiller at hotmail.com<mailto:pneumiller at hotmail.com>> wrote:
So I have a trial coming up where the occupant says occupant is buying the house and I represent the LL who says the occupant is renting the house and therefore subject to unlawful detainer.  The occupant has little to show that occupant is buying the house and therefore the statute of frauds kicks in.  But how?  Is it a “weight of the evidence type of thing” where the occupant can still present oral testimony and a couple of documents which don’t meet the requirements of the statute of limitations?  Or, can I object (on what grounds?) to the evidence from being presented at trial in the first place because it fails to rise to the level of documentation required by the statute of frauds?  In other words, I have this thing called the statute of frauds.  On a practical basis, how do I use it at trial?

BTW, I have read many sources regarding the statute and none have addressed how it is used at trial.

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