[WSBARP] Litigation and Statute of Frauds

Tue Apr 18 17:17:18 PDT 2023

Eric, you had me at "Pfui." That was awesome.

*Brett T. Sullivan*
Attorney at Law
Partner

1403 S. Grand Blvd., Suite 201-S
Spokane, WA  99203-2278

P: (509) 455-3713
D: (509) 828-4642
F: (509) 455-3718
E: brett at lucentlaw.com
lucentlaw.com

Facebook <http://www.facebook.com/lucentlaw>
LinkedIn <https://www.linkedin.com/in/brettsullivanspokane>
Twitter <https://twitter.com/lucentlaw>

CONFIDENTIALITY NOTICE: This email and any attachments are confidential and
may be protected by legal privilege. If you are not the intended recipient,
be aware that any disclosure, copying or distribution, or use of this email
or any attachment is prohibited. If you have received this email in error,
please notify me by returning it to the sender and delete this copy from
your system.

On Tue, Apr 18, 2023 at 4:53 PM Eric Nelsen <eric at sayrelawoffices.com>
wrote:

> 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
>
> 1417 31st Ave South
>
> Seattle WA 98144-3909
>
> 206-625-0092
>
> eric at sayrelawoffices.com
>
>
>
> *Covid-19 Update - *All attorneys are working remotely during regular
> business hours and are available via email and by phone. Videoconferencing
> also is available. Signing of estate planning documents can be completed
> and will be handled on a case-by-case basis. Please direct mail and
> deliveries to the Seattle office.
>
>
>
> *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.
>
>
>
>
>
>
>
>
>
>
>
> *From:* wsbarp-bounces at lists.wsbarppt.com <
> 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>
> *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
>
>
>
> 1403 S. Grand Blvd., Suite 201-S
>
> Spokane, WA 99203-2278
>
>
> P: 509.455.3713
> D: 509.828.4644
> F: +1.509.455.3718 (must dial 1 before area code)
>
> E: spencer at lucentlaw.com
>
>
>
> lucentlaw.com <https://www.lucentlaw.com/>
>
> Facebook <https://www.facebook.com/lucentlaw>
>
> LinkedIn <https://www.linkedin.com/company/lucent-law>
>
> Twitter <https://twitter.com/LucentLaw>
>
>
>
> CONFIDENTIALITY NOTICE: This email and any attachments are confidential
> and may be protected by legal privilege. If you are not the intended
> recipient, be aware that any disclosure, copying or distribution, or use of
> this email or any attachment is prohibited. If you have received this email
> in error, please notify me and delete it from your system.
>
>
>
>
>
> On Fri, Apr 14, 2023 at 11:36 AM Kelby Derenick <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
>
>
>
> *9414 State Ave., Suite E*
>
>
> *Marysville, WA 98270 Ph: (206) 659-5061*
>
>
>
> *14 E. Main Street, Suite 207*
>
> *Walla Walla, WA 99362*
>
> *Ph: (509) 676-9805*
>
>
>
> CONFIDENTIALITY NOTICE:  This electronic mail message contains information
> that (a) is or may be legally privileged, confidential, proprietary in
> nature, or otherwise protected by law from disclosure, and (b) is intended
> only for the use of the Addressee(s) named herein. If you are not the
> intended recipient, an addressee, or the person responsible for delivering
> this to an addressee, you are hereby notified that reading, using, copying,
> or distributing any part of this message is strictly prohibited. If you
> have received this electronic mail message in error, please contact me
> immediately and take the steps necessary to delete the message completely
> from your computer system.  Thank you.
>
>
>
>
>
>
>
> On Thu, Apr 13, 2023 at 4:07 PM Paul Neumiller <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.
>
>
>
>
>
>
>
>
>
> ***Disclaimer: Please note that RPPT listserv participation is not
> restricted to practicing attorneys and may include non-practicing
> attorneys, law students, professionals working in related fields, and
> others.***
>
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbarp
>
> ***Disclaimer: Please note that RPPT listserv participation is not
> restricted to practicing attorneys and may include non-practicing
> attorneys, law students, professionals working in related fields, and
> others.***
>
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbarp
>
> ***Disclaimer: Please note that RPPT listserv participation is not
> restricted to practicing attorneys and may include non-practicing
> attorneys, law students, professionals working in related fields, and
> others.***
>
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbarp
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20230418/33a03dd0/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 14264 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20230418/33a03dd0/image001.jpg>