[WSBARP] WSBARP Digest, Vol 103, Issue 19
Stephen Whitehouse
swhite8893 at aol.com
Wed Apr 19 09:56:12 PDT 2023
I would object to any evidence of an agreement to buy the property. The court may well deny it, assuming it can sort it out, but you preserve the objection. The defendant has to overcome the statute of frauds by way of part performance or some form of estoppel.
Steve
Stephen WhitehouseWhitehouse & Nichols, LLPP.O. Box 1273601 W. Railroad Ave. Shelton, Wa. 98584360-426-5885swhite8893 at aol.com
On Wednesday, April 19, 2023 at 09:38:59 AM PDT, <wsbarp-request at lists.wsbarppt.com> wrote:
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Today's Topics:
1. Re: Litigation and Statute of Frauds (Stromberg, Spencer)
2. Re: Litigation and Statute of Frauds (Paul Neumiller)
3. Re: Litigation and Statute of Frauds (Eric Nelsen)
4. Re: "Linkage" Agreement (Kelby Derenick)
5. Re: Litigation and Statute of Frauds (Sullivan, Brett)
6. Re: "Linkage" Agreement (Paul Drayna)
7. Re: "Linkage" Agreement (Annie Fitzsimmons)
8. Referral (Mark Vohr)
9. Re: Litigation and Statute of Frauds (Jason Burnett)
10. Re: Referral (Jan Kelly)
11. Scam Alert (Jan Kelly)
12. Re: Referral (Mark Vohr)
13. Re: Litigation and Statute of Frauds (Catherine Clark)
14. Re: Litigation and Statute of Frauds (Eric Nelsen)
----------------------------------------------------------------------
Message: 1
Date: Tue, 18 Apr 2023 14:59:54 -0700
From: "Stromberg, Spencer" <spencer at lucentlaw.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Litigation and Statute of Frauds
Message-ID:
<CAGyXgZLV7NpBHfV5ip=cdXWG_sc0WN0KiDPt3yOeJFygZA0NOA at mail.gmail.com>
Content-Type: text/plain; charset="utf-8"
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
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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 98270Ph: (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
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> have received this electronic mail message in error, please contact me
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> 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.***
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Message: 2
Date: Tue, 18 Apr 2023 22:53:07 +0000
From: Paul Neumiller <pneumiller at hotmail.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Litigation and Statute of Frauds
Message-ID:
<MW3PR13MB39806BE1EBAB2E648BD8E0BBD29D9 at MW3PR13MB3980.namprd13.prod.outlook.com>
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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.
[cid:image001.jpg at 01D9720D.BF71D530]
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
[https://ci3.googleusercontent.com/mail-sig/AIorK4wMRe_ukoUDSfEk1B9GOtzEv1ZmETJ5W4aT8G-i1q6fL7AkhPL9-7Q-uOEqpeS39zB_6R0N47HVfeKJTfKSM6im7XYlsivfchznVeSWqQ]
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<mailto:spencer at lucentlaw.com>
lucentlaw.com<https://www.lucentlaw.com/>
Facebook<https://www.facebook.com/lucentlaw>
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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<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
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<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.
[cid:image001.jpg at 01D9720D.BF71D530]
***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.***
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Message: 3
Date: Tue, 18 Apr 2023 23:40:56 +0000
From: Eric Nelsen <eric at sayrelawoffices.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Litigation and Statute of Frauds
Message-ID:
<SA1PR05MB788896EE00E52971CAC5B45EDD9D9 at SA1PR05MB7888.namprd05.prod.outlook.com>
Content-Type: text/plain; charset="utf-8"
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<mailto: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.
[cid:image001.jpg at 01D97210.F4E4F870]
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
[https://ci3.googleusercontent.com/mail-sig/AIorK4wMRe_ukoUDSfEk1B9GOtzEv1ZmETJ5W4aT8G-i1q6fL7AkhPL9-7Q-uOEqpeS39zB_6R0N47HVfeKJTfKSM6im7XYlsivfchznVeSWqQ]
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<mailto:spencer at lucentlaw.com>
lucentlaw.com<https://www.lucentlaw.com/>
Facebook<https://www.facebook.com/lucentlaw>
LinkedIn<https://www.linkedin.com/company/lucent-law>
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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<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
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<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.
[cid:image001.jpg at 01D97210.F4E4F870]
***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.***
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Message: 4
Date: Tue, 18 Apr 2023 17:12:10 -0700
From: Kelby Derenick <kelby at derenicklaw.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] "Linkage" Agreement
Message-ID:
<CAPb45nitL2AEvkRvhDn1rHtBQjPNgCEDMiBi0Kw-1M86AP6YXw at mail.gmail.com>
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I litigated this exact issue recently. I represented the property manager
who had a short provision in the management agreement stating if the owner
wanted to sell the property during the term of the contract the owner would
use the manager as the agent/broker. The provision further stated that if
the owner used another firm to market and sell the property then the
manager would be owed damages equaling 6% of the sale price. The case was
contested but in the end the court stated that the owner agreed to it and
it was a valid contract. The owner paid a double commission in the end.
I am not saying every judge would do the same. But if you represent the
owner make sure you review these management contracts carefully.
Kelby J. Derenick
Attorney
*9414 State Ave., Suite E*
*Marysville, WA 98270Ph: (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 Tue, Apr 18, 2023 at 2:42?PM Laird, Katherine <
KatherineLaird at centurypacificlp.com> wrote:
> Ideally, this would not be mandatory. The owner could agree to allow the
> PM to make a proposal for selling the property in the future as part of a
> competitive process. . What is the proposed brokerage fee? is it in this
> PM agreement? I suspect not. Also, I would only agree to this provision
> if the property manager has the chops to sell a building of this size and
> scope (at the time of sale) and the fee arrangement is already
> established. I would argue a commitment to sole source the brokerage work
> in the future would warrant a discounted fee. ?
>
> good luck,
>
> Katherine
> ------------------------------
> *From:* wsbarp-bounces at lists.wsbarppt.com <
> wsbarp-bounces at lists.wsbarppt.com> on behalf of Nestor Gorfinkel
> <nestor at GlcLawyer.com>
> *Sent:* Tuesday, April 18, 2023 2:15:54 PM
> *To:* WSBA Real Property Listserv
> *Subject:* Re: [WSBARP] "Linkage" Agreement
>
> *[EXTERNAL]*
> ------------------------------
>
> I have seen management agreements that include those clauses. However, on
> behalf of owner I would exempt transfers to related parties, related
> entities or for estate planning purposes. I would also add refinances,
> Helocs or other loans in your case.
>
>
>
>
>
> Cordially,
>
>
>
> Nestor Gorfinkel, Attorney at Law
>
> Licensed in Florida & Washington State
>
> Florida Civil-Law (International) Notary
>
>
>
>
>
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>
>
>
>
> *From:* wsbarp-bounces at lists.wsbarppt.com <
> wsbarp-bounces at lists.wsbarppt.com> *On Behalf Of *Chris B
> *Sent:* Tuesday, April 18, 2023 4:51 PM
> *To:* wsbarp at lists.wsbarppt.com
> *Subject:* [WSBARP] "Linkage" Agreement
>
>
>
> One of my property management clients wants a clause in its management
> agreement whereby the client agrees to also list the property with them if
> they choose to sell during the term of the contract. I would never agree
> to such a clause myself, but aside from that, any thoughts on whether this
> would be permissible?
>
>
> The same client also has an agreement where he loans money to its clients
> if they can?t afford to pay for needed repairs. This seems sketchy to me
> too, but I am curious what everyone else thinks.
>
>
>
> Chris Benis
>
> First Avenue Law Group, PLLC
>
> 321 First Avenue West, Seattle, WA 98119
>
> 206.447-1900 office ? 206.447.9075 fax ? www. firstavenuelaw.com
>
>
>
> This message contains information that may be CONFIDENTIAL AND
> PRIVILEGED. Unless you are the addressee (or authorized to receive for the
> addressee), you may not use, copy or disclose to anyone the message or any
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> error, please advise the sender by reply e-mail chrisb at firstavenuelaw.com,
> and delete this message. Thank you very much.
>
>
>
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> it contains advice relating to federal taxes, was not intended or written
> to be used, and it cannot be used, for the purpose of avoiding penalties
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> taxpayer may rely on professional advice to avoid federal tax penalties
> only if that advice is reflected in a comprehensive tax opinion that
> conforms to stringent requirements under federal law. Please contact me if
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Message: 5
Date: Tue, 18 Apr 2023 17:17:18 -0700
From: "Sullivan, Brett" <brett at lucentlaw.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Litigation and Statute of Frauds
Message-ID:
<CANeoVV2=ex-r4=3Ue+t-t5i=oH4ue5hRXXMfEfFnyyc8fqb7zg at mail.gmail.com>
Content-Type: text/plain; charset="utf-8"
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>
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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
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>
>
>
> 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
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Message: 6
Date: Tue, 18 Apr 2023 19:26:00 -0700
From: Paul Drayna <paul at draynalaw.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] "Linkage" Agreement
Message-ID:
<CALGUytV18ssNyRMtXsJfN9PhpNuJmD+QT2V=ZxTCTwDe6jssPQ at mail.gmail.com>
Content-Type: text/plain; charset="utf-8"
Hi Chris, I've always wondered if this practice could be challenged as a
"tying" violation of antitrust law.
Tying the Sale of Two Products | Federal Trade Commission (ftc.gov)
<https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/single-firm-conduct/tying-sale-two-products>
Paul S. Drayna
Attorney at Law
phone: 425-844-2575
site: www.draynalaw.com
email: paul at draynalaw.com
<https://www.facebook.com/paul.drayna.jd>
<https://www.linkedin.com/in/paulstephendrayna/>
The contents of this message may be privileged and/or confidential. If you
have received this in error please delete the original message and notify
the sender immediately. Thank you.
On Tue, Apr 18, 2023 at 1:54?PM Chris B <chrisb at firstavenuelaw.com> wrote:
> One of my property management clients wants a clause in its management
> agreement whereby the client agrees to also list the property with them if
> they choose to sell during the term of the contract. I would never agree
> to such a clause myself, but aside from that, any thoughts on whether this
> would be permissible?
>
>
> The same client also has an agreement where he loans money to its clients
> if they can?t afford to pay for needed repairs. This seems sketchy to me
> too, but I am curious what everyone else thinks.
>
>
>
> Chris Benis
>
> First Avenue Law Group, PLLC
>
> 321 First Avenue West, Seattle, WA 98119
>
> 206.447-1900 office ? 206.447.9075 fax ? www. firstavenuelaw.com
>
>
>
> This message contains information that may be CONFIDENTIAL AND
> PRIVILEGED. Unless you are the addressee (or authorized to receive for the
> addressee), you may not use, copy or disclose to anyone the message or any
> information contained in the message. If you have received the message in
> error, please advise the sender by reply e-mail chrisb at firstavenuelaw.com,
> and delete this message. Thank you very much.
>
>
>
> To comply with recent IRS rules, we must inform you that this message, if
> it contains advice relating to federal taxes, was not intended or written
> to be used, and it cannot be used, for the purpose of avoiding penalties
> that may be imposed under federal tax law. Under recent IRS rules, a
> taxpayer may rely on professional advice to avoid federal tax penalties
> only if that advice is reflected in a comprehensive tax opinion that
> conforms to stringent requirements under federal law. Please contact me if
> you would like to discuss our preparation of an opinion that conforms to
> these new rules.
>
>
> ***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.***
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Message: 7
Date: Tue, 18 Apr 2023 20:11:41 -0700 (PDT)
From: Annie Fitzsimmons <atfitz at comcast.net>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>, Paul
Drayna <paul at draynalaw.com>
Subject: Re: [WSBARP] "Linkage" Agreement
Message-ID: <1738313607.1176037.1681873901588 at connect.xfinity.com>
Content-Type: text/plain; charset="utf-8"
Chris. You should review SSB 5399-S.PL.pdf (wa.gov) https://lawfilesext.leg.wa.gov/biennium/2023-24/Pdf/Bills/Senate%20Passed%20Legislature/5399-S.PL.pdf?q=20230418200447
It may impact the contract provision you create for your client. It passed both houses of the Legislature and is awaiting the Governor's signature. It has an emergency clause and will take immediate effect.
Thanks - Annie
Annette T. Fitzsimmons P.S.
P.O. Box 430
Belfair, WA 98528
> On 04/18/2023 7:26 PM Paul Drayna <paul at draynalaw.com> wrote:
>
>
> Hi Chris, I've always wondered if this practice could be challenged as a "tying" violation of antitrust law.
>
> Tying the Sale of Two Products | Federal Trade Commission (ftc.gov) https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/single-firm-conduct/tying-sale-two-products
>
>
> Paul S. Drayna
> Attorney at Law
> phone: 425-844-2575 tel:425-844-2575
> site: http://www.draynalaw.com/
> email: paul at draynalaw.com mailto:paul at draynalaw.com https://www.facebook.com/paul.drayna.jd https://www.linkedin.com/in/paulstephendrayna/
>
> The contents of this message may be privileged and/or confidential. If you have received this in error please delete the original message and notify the sender immediately. Thank you.
>
>
>
> On Tue, Apr 18, 2023 at 1:54?PM Chris B <chrisb at firstavenuelaw.com mailto:chrisb at firstavenuelaw.com > wrote:
>
> > >
> > One of my property management clients wants a clause in its management agreement whereby the client agrees to also list the property with them if they choose to sell during the term of the contract. I would never agree to such a clause myself, but aside from that, any thoughts on whether this would be permissible?
> >
> >
> > The same client also has an agreement where he loans money to its clients if they can?t afford to pay for needed repairs. This seems sketchy to me too, but I am curious what everyone else thinks.
> >
> >
> >
> > Chris Benis
> >
> > First Avenue Law Group, PLLC
> >
> > 321 First Avenue West, Seattle, WA 98119
> >
> > 206.447-1900 office ? 206.447.9075 fax ? www.http://firstavenuelaw.com
> >
> >
> >
> > This message contains information that may be CONFIDENTIAL AND PRIVILEGED. Unless you are the addressee (or authorized to receive for the addressee), you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender by reply e-mail chrisb at firstavenuelaw.com mailto:chrisb at firstavenuelaw.com , and delete this message. Thank you very much.
> >
> >
> >
> > To comply with recent IRS rules, we must inform you that this message, if it contains advice relating to federal taxes, was not intended or written to be used, and it cannot be used, for the purpose of avoiding penalties that may be imposed under federal tax law. Under recent IRS rules, a taxpayer may rely on professional advice to avoid federal tax penalties only if that advice is reflected in a comprehensive tax opinion that conforms to stringent requirements under federal law. Please contact me if you would like to discuss our preparation of an opinion that conforms to these new rules.
> >
> >
> >
> > ***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 mailto: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.***
>
> _______________________________________________
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> http://mailman.fsr.com/mailman/listinfo/wsbarp
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Message: 8
Date: Wed, 19 Apr 2023 15:34:20 +0000
From: Mark Vohr <mcv at ohanafc.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>, WSBA
Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBARP] Referral
Message-ID:
<MW3PR13MB410768101A8F83CF918AF6C8A1629 at MW3PR13MB4107.namprd13.prod.outlook.com>
Content-Type: text/plain; charset="us-ascii"
Apologies in advance for multiple posts, but I have an individual for whom we previously provided fiduciary services who is having ownership issues with the cemetery (located in King County) at which he owns several plots.
Seeking an attorney who has experience working on these kinds of things. If this is you, please email me directly and we can discuss the parties for conflicts check
Regards,
Mark
Ohana Fiduciary Corp.
A Washington Chartered Trust Company
Mark C. Vohr, J.D., CPGC, Principal
155 NE 100th St., Suite 209 Seattle, WA 98125
T: (206) 782-1189 F: (206) 782-1434
mcv at ohanafc.com<mailto:mcv at ohanafc.com> www.ohanafc.com<http://www.ohanafc.com/>
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This communication may contain information that is confidential. It was intended only for the named or a specific recipient. If you have received this communication in error. Please delete it immediately and contact the sender to advise them of improper delivery.
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Message: 9
Date: Wed, 19 Apr 2023 15:44:56 +0000
From: Jason Burnett <jburnett at reedlongyearlaw.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Litigation and Statute of Frauds
Message-ID:
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Content-Type: text/plain; charset="utf-8"
I thought I caught him in an error, but PHOOEY! It?s a recognized alternative spelling.
Jason W. Burnett
Attorney at Law
Reed Longyear Malnati Corwin & Burnett, PLLC
[A black background with white text Description automatically generated with low confidence]<http://reedlongyearlaw.com/>
801 Second Ave, Suite 1415
Seattle, WA 98104
Phone: (206) 624?6271
Fax: (206) 624?6672
jburnett at reedlongyearlaw.com<mailto:jburnett at reedlongyearlaw.com>
www.reedlongyearlaw.com<http://www.reedlongyearlaw.com/>
[cid:image002.png at 01D9729B.36AFF9A0]<https://www.facebook.com/reedlongyear>[cid:image003.png at 01D9729B.36AFF9A0]<https://twitter.com/ReedLongyear>[cid:image004.png at 01D9729B.36AFF9A0]<http://www.linkedin.com/company/reed-longyear-malnati-&-ahrens-pllc>
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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Sullivan, Brett
Sent: Tuesday, April 18, 2023 5:17 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Litigation and Statute of Frauds
Eric, you had me at "Pfui." That was awesome.
Brett T. Sullivan
Attorney at Law
Partner
[https://ci3.googleusercontent.com/mail-sig/AIorK4yOUljtOzDnhXCjUiBuPG8Hj6U3HtblY4BFjXug8xSesMpbpAA6U7WWxXOnDSm6h0dzArGezBExbwe0KKhWvqeCuNUqlGzJbMnMRv7h8A]
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On Tue, Apr 18, 2023 at 4:53?PM Eric Nelsen <eric at sayrelawoffices.com<mailto: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<mailto: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<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto: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<mailto: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.
[cid:image005.jpg at 01D9729B.36AFF9A0]
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
[https://ci3.googleusercontent.com/mail-sig/AIorK4wMRe_ukoUDSfEk1B9GOtzEv1ZmETJ5W4aT8G-i1q6fL7AkhPL9-7Q-uOEqpeS39zB_6R0N47HVfeKJTfKSM6im7XYlsivfchznVeSWqQ]
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<mailto:spencer at lucentlaw.com>
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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
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<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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Message: 10
Date: Wed, 19 Apr 2023 08:47:58 -0700
From: Jan Kelly <jan at jankellylaw.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Referral
Message-ID:
<CAATkJAz3qWhhhcPo_jJGscfhFtcPX277tAbyBL51unvgGK1RUQ at mail.gmail.com>
Content-Type: text/plain; charset="utf-8"
Hi Mark,
This email is not responsive to your post; however, I've meant to contact
Ohana for a while. I have a client who named Ohana as a secondary trustee,
following his sister. Should I have him contact Ohana now? Thank you!
Jan
On Wed, Apr 19, 2023 at 8:39?AM Mark Vohr <mcv at ohanafc.com> wrote:
> Apologies in advance for multiple posts, but I have an individual for whom
> we previously provided fiduciary services who is having ownership issues
> with the cemetery (located in King County) at which he owns several plots.
>
>
>
> Seeking an attorney who has experience working on these kinds of things.
> If this is you, please email me directly and we can discuss the parties for
> conflicts check
>
>
>
> Regards,
>
>
>
> Mark
>
>
>
> *Ohana Fiduciary Corp.*
>
> *A Washington Chartered Trust Company*
>
> *Mark C. Vohr, J.D., CPGC, Principal*
>
> *155 NE 100th St., Suite 209 Seattle, WA 98125*
>
> *T: (206) 782-1189 F: (206) 782-1434*
>
> mcv at ohanafc.com www.ohanafc.com
>
>
>
>
>
> CONFIDENTIAL AND/OR PRIVILEGED COMMUNICATION
>
>
>
> This communication may contain information that is confidential. It was
> intended only for the named or a specific recipient. If you have received
> this communication in error. Please delete it immediately and contact the
> sender to advise them of improper delivery.
>
>
>
> This communication is not intended to provide legal advice to the
> recipient. The sender does not represent you as legal counsel and neither
> this communication or any conversations you may have with the sender
> creates an attorney client relationship with the sender. If you seek legal
> advice please retain an attorney, but it will be someone else.
>
>
>
>
>
>
>
>
> ***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
>
--
*Jan Kelly, JD/MBA*Attorney at Law
JK Law
PO Box 1964
Poulsbo, WA 98370
Direct Line (702) 338-6733
*Licensed in Nevada and Washington*.
THIS EMAIL MESSAGE AND ANY ATTACHMENTS ARE CONFIDENTIAL AND INTENDED ONLY
FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY
CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM
DISCLOSURE UNDER APPLICABLE LAW. Any unauthorized review, use, copying,
disclosure or distribution of any information contained in or attached to
this communication is STRICTLY PROHIBITED. If you have received this
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Message: 11
Date: Wed, 19 Apr 2023 09:03:44 -0700
From: Jan Kelly <jan at jankellylaw.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>, Solo and
Small Practice Section <solo-and-small-practice-section at list.wsba.org>
Subject: [WSBARP] Scam Alert
Message-ID:
<CAATkJAxHkEYRfOvFR9zkA_iK5gbe-Frd1FCg4iBkbhpi0Nux6g at mail.gmail.com>
Content-Type: text/plain; charset="utf-8"
Good morning!
A client of mine forwarded to me an email he received purportedly from the
WA Secretary of State's office. It provided a link for him to file his
annual meeting minutes. I'm glad he didn't click on the link. I reported it
to the WA SOS's office. Be aware!
--
*Jan Kelly, JD/MBA*Attorney at Law
JK Law
PO Box 1964
Poulsbo, WA 98370
Direct Line (702) 338-6733
*Licensed in Nevada and Washington*.
THIS EMAIL MESSAGE AND ANY ATTACHMENTS ARE CONFIDENTIAL AND INTENDED ONLY
FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY
CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM
DISCLOSURE UNDER APPLICABLE LAW. Any unauthorized review, use, copying,
disclosure or distribution of any information contained in or attached to
this communication is STRICTLY PROHIBITED. If you have received this
communication in error, or are not the named recipient, please immediately
notify the sender by email by "reply to sender only" and delete this
message and any attached documents from your computer. Receipt by anyone
other than the intended recipient(s) is not a waiver of confidentiality
and/or any legal privilege. Thank you.
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Message: 12
Date: Wed, 19 Apr 2023 16:13:45 +0000
From: Mark Vohr <mcv at ohanafc.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Cc: Laurel Grimes <lfg at ohanafc.com>
Subject: Re: [WSBARP] Referral
Message-ID:
<MW3PR13MB41073E24A0105F52C2E0ACE5A1629 at MW3PR13MB4107.namprd13.prod.outlook.com>
Content-Type: text/plain; charset="utf-8"
Jan ?
Thank you for letting me know. Yes, please have your client contact us now and provide us with copied of the documents in which we are named in a fiduciary role. We have a setup procedure for any client who names us in their documents. Our goal is to be fully prepared so that we can efficiently administer our role should we be called upon. When we are named in documents, we set these clients up as ?deferred clients? for whom we may, or may not, be providing services at some point in the future.
We like to have deferred clients complete intake information forms relevant to the roles we may possibly fill. As you can imagine, having them do so dramatically improves our ability to perform efficiently perform those roles, particularly when the client may no longer be able to provide useful, and sometimes critical information. While we can ultimately figure out any complex situation, having advance information is a big plus.
We offer in person or zoom meetings for client and do not charge a fee for these meetings or for any part of the set-up process. Your client has no obligation, pays no fees, and can change their minds and adopt a new plan anytime they wish. We don?t start charging any fees until we are performing a fiduciary role. If they end up changing their mind about their plan, we only ask that they let us know so that we can close the deferred file.
Our goal is to get to know all clients for whom we may provide services in advance of actually being called upon to provide those services. Everyone wins with this approach.
So ? yes, please ask your client to contact us. She/he can contact our intake coordinator, Laurel Grimes, at: lfg at ohanafc.com<mailto:lfg at ohanafc.com>
Please let me know if you have any additional questions.
Regards,
Mark
Mark C. Vohr, J.D. CPGC
Ohana Fiduciary Corporation
A Washington Trust Company
155 NE 100th St., Suite 209
Seattle, WA 98125
Telephone: (206) 782-1189
From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Jan Kelly
Sent: Wednesday, April 19, 2023 8:48 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Referral
Hi Mark,
This email is not responsive to your post; however, I've meant to contact Ohana for a while. I have a client who named Ohana as a secondary trustee, following his sister. Should I have him contact Ohana now? Thank you!
Jan
On Wed, Apr 19, 2023 at 8:39?AM Mark Vohr <mcv at ohanafc.com<mailto:mcv at ohanafc.com>> wrote:
Apologies in advance for multiple posts, but I have an individual for whom we previously provided fiduciary services who is having ownership issues with the cemetery (located in King County) at which he owns several plots.
Seeking an attorney who has experience working on these kinds of things. If this is you, please email me directly and we can discuss the parties for conflicts check
Regards,
Mark
Ohana Fiduciary Corp.
A Washington Chartered Trust Company
Mark C. Vohr, J.D., CPGC, Principal
155 NE 100th St., Suite 209 Seattle, WA 98125
T: (206) 782-1189 F: (206) 782-1434
mcv at ohanafc.com<mailto:mcv at ohanafc.com> www.ohanafc.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.ohanafc.com_&d=DwMFaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=D9tEoysSE2LeouMC9Y8WQQ&m=pM-fgcAU5TeLYJDvk9WIwF0hlO02iCF5s9m3XYx2oZM&s=D9jyfXJZfxd1eI3W_v7OsaBCbuO90O1MVFgWWpwChkE&e=>
CONFIDENTIAL AND/OR PRIVILEGED COMMUNICATION
This communication may contain information that is confidential. It was intended only for the named or a specific recipient. If you have received this communication in error. Please delete it immediately and contact the sender to advise them of improper delivery.
This communication is not intended to provide legal advice to the recipient. The sender does not represent you as legal counsel and neither this communication or any conversations you may have with the sender creates an attorney client relationship with the sender. If you seek legal advice please retain an attorney, but it will be someone else.
***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.***
_______________________________________________
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WSBARP at lists.wsbarppt.com<mailto:WSBARP at lists.wsbarppt.com>
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--
Jan Kelly, JD/MBA
Attorney at Law
JK Law
PO Box 1964
Poulsbo, WA 98370
Direct Line (702) 338-6733
Licensed in Nevada and Washington.
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Message: 13
Date: Wed, 19 Apr 2023 16:33:48 +0000
From: Catherine Clark <Cat at loccc.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Litigation and Statute of Frauds
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>From a trial brief I just filed
If the agreement lacks a proper legal description, it is void.
The statute of frauds for real property provides, ?Every conveyance of real estate, or any interest therein, and every contract creating or evidencing any encumbrance upon real estate, shall be by deed ? .? RCW 64.04.010<https://plus.lexis.com/document/?pdmfid=1530671&crid=24ded445-176c-452f-9b50-7a2f3d8b9547&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4VK8-WNS0-TXFX-X21H-00000-00&pdcontentcomponentid=10841&pdteaserkey=&pdislpamode=false&pdworkfolderlocatorid=NOT_SAVED_IN_WORKFOLDER&ecomp=174k&earg=sr1&prid=e0a597d4-d856-4e55-a402-2aa4770e992e>. Every deed ?shall be in writing, signed by the party bound thereby, and acknowledged.? RCW 64.04.020<https://plus.lexis.com/document/documentlink/?pdmfid=1530671&crid=0a1b0bdd-c6f5-467d-a82d-8cc6bb91bb44&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A55D0-4NB1-F04M-B05S-00000-00&pdcontentcomponentid=10841&pdproductcontenttypeid=urn%3Apct%3A30&pdiskwicview=false&pdpinpoint=&ecomp=2gntk>. Deeds !
of trust must comply with all mortgage laws (RCW 61.24.020) and the real estate statute of frauds. GLEPCO, LLC v. Reinstra, 175 Wash. App. 545, 554, 307 P.3d 744 (2013) (?Deeds of trust and trustee's deeds are subject to the statute of frauds.?).
It is the unusually strict but well-settled rule in Washington that to comply with these statutes, real estate subject to a conveyance must be described in sufficient detail that the court is not compelled to resort to extrinsic evidence in order to find out what was in the minds of the contracting parties. Martin v. Seigel, 35 Wn.2d 223, 228, 212 P.2d 107 (1949)<https://plus.lexis.com/document/documentlink/?pdmfid=1530671&crid=0a1b0bdd-c6f5-467d-a82d-8cc6bb91bb44&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A55D0-4NB1-F04M-B05S-00000-00&pdcontentcomponentid=10841&pdproductcontenttypeid=urn%3Apct%3A30&pdiskwicview=false&pdpinpoint=&ecomp=2gntk>; Key Design, Inc. v. Moser, 138 Wn.2d 875, 883-84, 983 P.2d 653<https://plus.lexis.com/document/documentlink/?pdmfid=1530671&crid=0a1b0bdd-c6f5-467d-a82d-8cc6bb91bb44&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A55D0-4NB1-F04M-B05S-00000-00&pdcontentcomponentid=10841&pdproductcontenttypeid=urn%3A!
pct%3A30&pdiskwicview=false&pdpinpoint=&ecomp=2gntk>, 993 P.2d 900 (1999)<https://plus.lexis.com/document/documentlink/?pdmfid=1530671&crid=0a1b0bdd-c6f5-467d-a82d-8cc6bb91bb44&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A55D0-4NB1-F04M-B05S-00000-00&pdcontentcomponentid=10841&pdproductcontenttypeid=urn%3Apct%3A30&pdiskwicview=false&pdpinpoint=&ecomp=2gntk>.
Kofmehl v. Baseline Lake, LLC, 167 Wn. App. 677, 689-90, 275 P.3d 328, 335 (2012) (emphasis added.).
Washington courts have long held that to comply with the statute of frauds, a deed conveying land must describe the land conveyed in sufficient detail that it can be located without recourse to oral testimony (unless the deed refers to another instrument that does contain a sufficient description). Bigelow v. Mood, 56 Wn.2d 340, 341, 353 P.2d 429 (1960). An agreement containing an inadequate legal description is void. Howell, 28 Wn. App. at 495-96. Washington's rule is ?the strictest in the nation ? . In most states an incomplete description or a street address is sufficient, and parol evidence may be received to locate the land. Not so in Washington.? 18 William B. Stoebuck & John W. Weaver, Washington Practice: Real Estate: Transactions ? 16.3, at 225 (2d ed. 2004).
Maier v. Giske, 154 Wn. App. 6, 15, 223 P.3d 1265 (2010) (Emphasis added.)
In Home Realty Lynnwood, Inc. v. Walsh, 146 Wn. App. 231, 233, 189 P.3d 253 (2008), Division One reversed a trial court?s grant of summary judgment which relied on the oral testimony of the parties to a purchase and sale agreement. It stated:
Because we adhere to Washington's strict rule against recourse to oral testimony in determining whether a legal description satisfies the statute of frauds, we reverse the trial court's order granting the Walshes' summary judgment motion.
Id. at 233.
Catherine ?Cat? Clark
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From: Jason Burnett<mailto:jburnett at reedlongyearlaw.com>
Sent: Wednesday, April 19, 2023 8:57 AM
To: WSBA Real Property Listserv<mailto:wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Litigation and Statute of Frauds
I thought I caught him in an error, but PHOOEY! It?s a recognized alternative spelling.
Jason W. Burnett
Attorney at Law
Reed Longyear Malnati Corwin & Burnett, PLLC
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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Sullivan, Brett
Sent: Tuesday, April 18, 2023 5:17 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Litigation and Statute of Frauds
Eric, you had me at "Pfui." That was awesome.
Brett T. Sullivan
Attorney at Law
Partner
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On Tue, Apr 18, 2023 at 4:53?PM Eric Nelsen <eric at sayrelawoffices.com<mailto: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<mailto:eric at sayrelawoffices.com>
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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 Paul Neumiller
Sent: Tuesday, April 18, 2023 3:53 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
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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Marysville, WA 98270
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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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Message: 14
Date: Wed, 19 Apr 2023 16:38:27 +0000
From: Eric Nelsen <eric at sayrelawoffices.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Litigation and Statute of Frauds
Message-ID:
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You?re more likely to catch me in a pronunciation error. I read too much so I know a lot of words, but too often I discover the hard way that I don?t know how to pronounce them. I still remember the feeling when I was a kid of pronouncing ?legion? like ?le-JY-un? in front of my older brother....who showed no mercy. :-)
Sincerely,
Eric
Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto: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 Jason Burnett
Sent: Wednesday, April 19, 2023 8:45 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Litigation and Statute of Frauds
I thought I caught him in an error, but PHOOEY! It?s a recognized alternative spelling.
Jason W. Burnett
Attorney at Law
Reed Longyear Malnati Corwin & Burnett, PLLC
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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 Sullivan, Brett
Sent: Tuesday, April 18, 2023 5:17 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
Eric, you had me at "Pfui." That was awesome.
Brett T. Sullivan
Attorney at Law
Partner
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On Tue, Apr 18, 2023 at 4:53?PM Eric Nelsen <eric at sayrelawoffices.com<mailto: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
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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 Paul Neumiller
Sent: Tuesday, April 18, 2023 3:53 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
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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