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Q: Legal claim on property ( Answered,   4 Comments )
Subject: Legal claim on property
Category: Miscellaneous
Asked by: neil883-ga
List Price: $20.00
Posted: 26 Aug 2002 06:04 PDT
Expires: 25 Sep 2002 06:04 PDT
Question ID: 58572
This is a legal question. I have recently been in a nasty arguement
with my older sister regarding issues related to our mothers
alzheimers disease and her consequently having to go into a nursing
home. It is a rather long complicated story- but now another issue has
been brought up, I believe as a result of our discord about our mother
but really having nothing to do with our mothers condition. I believe
rather this is happening out of vindictiveness and jealousy. In
October of 1999 my sister approached my wife and offered to buy a
property(about 1 acre with a drilled well and septic, 3 bedroom mobile
home) that we were having difficulty selling- and was strapping us
financially. We thought this to be a very generous offer and were
elated to think that she and my brother in law were willing to help us
out.  The problem is- we never drew up any agreement in writing! I
asked to do that and my brother in law assured me that was not
necessary.  The agreement as we understood it was: after our tenant
moved out, they would "take over the mortagage payments", what that
meant was - they would transfer the money to our account- and we would
continue paying the bank as usual.  They also advertised the mobile
home, showed it and sold it- as they did not wish to live in that.
This all began in May of 2000. After the mobile home sold in August of
2000, that money was put directly against the balance of the loan, and
they paid the balance off out of their pockets (about $10,000) They
also paid the taxes due on the property. Now that she is mad at me
about our mother she sent me a letter last week demanding payment of
$2700.00 for the taxes and the 5 mortgage payments made almost 2 years
ago now.  Does she have any legal basis for this claim? Should we
respond back with our own letter stating our understanding of the
agreement ( as a way of our going on record?)Or do we need to get a
lawyer right now to handle this?
I can't believe she is doing this, it is a very ugly situation. Please
Neil 883-ga
Subject: Re: Legal claim on property
Answered By: siliconsamurai-ga on 26 Aug 2002 07:28 PDT
Although you can never tell what a particular court will do and the
real estate laws vary in detail from state to state, there are some
general things I can explain about your situation. Please remember
that we here at Google Answers can not give legal advice as such and
you should never take any action based solely on our research.

First, yes, you probably do need a lawyer, but before you go that
route here is some background which should tell you what you can
expect and whether you think this is something that you should try to
work out or perhaps take to small claims court if possible in your

Unfortunately you have just discovered why there is something called
The Statute of Frauds which applies in all U.S. states and, to the
best of my knowledge, all Commonwealth countries since it’s an old
English law doctrine dated back to 1677. As you can see your situation
isn’t new. The old saying that an oral contract isn’t worth the paper
it’s written on isn’t actually correct. Oral contracts can be entirely
valid but the main restriction on this is what is known as The Statute
of Frauds.

Essentially what this says is that certain types of transactions must,
absolutely MUST be in writing or they can’t be enforced.  In most
jurisdictions this includes:

Any transaction which will not be completed within one year.

Any transaction with a value over a certain amount (often $500.)

AND, ANY transaction having to do with the conveyance (transfer) of
land rights.

Your case is complex but the underlying law is simple. Oral contracts
can be valid and enforceable unless they are deemed to be against
public policy, involve illegal activities, or would fall under the
statute of frauds.

You really can’t go “on record” at this point, an agreement has to be
in place in advance, although a lawyer might suggest writing a letter
as part of a negotiation. An offer of compromise will seldom if ever
have any legal standing unless it is accepted so you should be able to
try and negotiate something fair with the other party without damaging
your standing in any future action. I would personally do this face to
face, preferably without witnesses, but any compromise agreed upon
should be put in writing.  This situation will either be settled
amicably between you or in court.  All you can hope for is a judge who
will view the equities of this arrangement but as for legal grounds,
neither of you has a clear case except that you simply can't sell land
on an oral agreement.

Unless a deed was executed and recorded you still hold title to the
property and can sue for the use the other party has made of the

The bottom line in all this is that you can’t agree to convey title to
real  property without putting it in writing so your agreement with
your relative has no legal standing. A judge who is willing to
consider this case and make a ruling will have to do it on an equity
basis and esentially make up a new agreement which he or she will be
reluctant to do.

That said, you should consider this. If you did NOT have an agreement
in writing then selling the mobile home could be a criminal act known
as fraudulent conversion.  If the other party has enjoyed use of the
property during the period in question then a court might well choose
to interpret this as something for which you should be compensated but
this is pretty shaky ground also since even a lease lasting longer
than one year must be in writing. If you want to get nasty and if you
never signed a title to the mobile home, you might want to contact a
lawyer and seek specific advice about prosecuting if the statute of
limitations hasn’t expired.

Here are some explanations available online.

Professor Smith’s Contract Tutorial, specifically for California

Here is a brief explanation of the statute of frauds from

A related rule is called the parole evidence rule and it is often
confused with the statute of frauds.

In brief this relates to the fact that a written agreement can’t be
modified by an oral agreement but that doesn’t apply in your case.

Here is information for New Jersey

If you want to tell us what state the property is located in I can
probably provide a link to that state’s specific rule but they are all
very similar. Most have wording to the effect that, “No action shall
be brought in court concerning…”

Search terms

Google “statute of frauds”

You are in a sticky situation which is exactly why real estate
transactions must, by law, be in writing in most parts of the English
speaking world. Local laws will govern and may vary somewhat so you
will almost certainly need some legal advice.  There are many lawyers
who offer a free consultation and you should avail yourself of one or
more of these before taking any action at all. There are also online
resources available but since specific advice will only be available
from a lawyer licensed to practice in your state I can’t provide any
special links. You should have no trouble locating a lawyer who will
offer a free initial consultation either by watching local television
ads, or by calling a few lawyers in the local phone directory.

Best of luck and remember that, in a situation like this there are
several possible goals and you need to decide which is most important.
You can win a case and lose a family.

If it helps, if the brother-in-law who told you this didn't need to be
in writing is a lawyer you can certainly have him censured and
possibly even disbarred.

I hope this has been helpful, a detailed analysis of your particular
situation really wouldn’t be appropriate since the specific laws vary
so much but I believe you will find that your main problem lies within
the statute of frauds which would make any unwritten real property
conveyance null and void in most jurisdictions.  However, you do, if I
read your statement correctly, still own the property and that should
give you some leverage. You might also want to check to see if the
taxes have actually been paid so you don’t encounter a tax sale half
way through this.

If the mobile home was sold without your written permission and it's
value was over $500, this is an important fact to tell any lawyer.

The Statute of Frauds is actually intended to protect you, the land
owner from claims that you have sold it when you really haven't.  The
value of the real property doesn't enter into this, it could be
virtually worthless land.

Please ask if you need a clarification but I don’t believe we can
provide much more information without stepping over the line into
giving legal advice which we are not permitted to do.
Subject: Re: Legal claim on property
From: expertlaw-ga on 26 Aug 2002 08:42 PDT
The statute of frauds may be relevant to the proceedings, but it isn't
a magic bullet that kills a non-compliant statute. Ordinarily, it is
an "affirmative defense" to an action to enforce a contract - which
means the party who wishes to claim that the statute of frauds was
violated must ask the court to apply the statute and (whether they are
the plaintiff or defendant) will carry the burden of proof on that

Additionally, most states have a body of law which holds that a party
that has acted wrongfully cannot plead the statute of frauds - that
is, the courts will not let themselves be used to compound that
person's wrongful acts. There is actually some pressure to
significantly scale back or repeal the statute of frauds - although it
was created to protect parties from being haled into court over
fraudulent claims, it is primarily used by parties who wish to avoid
the application of oral contracts, the terms of which are not actually
in dispute.

If either side in the case you describe tried to plead the statute of
frauds, as siliconsamurai points out, it would invalidate the contract
as it affects an interest in property, and is neither in writing nor
signed by the party to be charged with the agreement. However the
consequence would be rescission - the court would attempt to put the
parties back into their original position. You did not mention if your
sister and brother-in-law built a new home on the property or if they
live on the property - if so, they may not wish to restore the land to
your possession.

All of this becomes moot if, after you paid off the mortgage, the
property was titled over to your sister and brother-in-law. The deed
granting them title would vest them with title. Ordinarily the deed
will recite the "consideration" paid for the property - these days,
usually a dollar figure. A duly executed, signed and recorded deed
would satisfy the statute of frauds. However, your sister and
brother-in-law could still try to introduce additional statements
("parol evidence") to try to prove that certain payments they made
were in addition to the purchase price and were to be repaid by you.

Also, if neither party wishes to dispute that there was a sale of the
property from you to your sister and brother-in-law (whether or not
there is yet a deed transferring title), the purpose of a legal
proceeding would be to try to establish the terms of the purchase
agreement. If there is no deed, you may be able to bring an action for
rent for the period of time your sister and brother-in-law were in
possession of the property.

If you do choose to follow siliconsamurai's invitation to request a
clarification, I suggest you clarify the circumstances of the
agreement, including whether your sister and brother-in-law placed a
new home on the property and if they reside there, and indicate the
state where this has occurred. siliconsamurai is correct that laws
vary between states, but many states now put their statutes and recent
case law online so it may be possible to find some helpful legal
authorities to clarify your situation.

Before you put anything in writing with regard to how you perceive the
agreement, it would be a good idea to have your letter to your sister
reviewed by a lawyer in your state. You may be able to find a lawyer
through the resources listed by the American Bar Association at:
Subject: Re: Legal claim on property
From: expertlaw-ga on 26 Aug 2002 08:43 PDT
Silly me... that first sentence should read "The statute of frauds may
be relevant to the proceedings, but it isn't a magic bullet that kills
a non-compliant CONTRACT."
Subject: Re: Legal claim on property
From: siliconsamurai-ga on 26 Aug 2002 08:56 PDT
I think expertlaw and I agree that we really can't give detailed help
without knowing the jurisdiction and a lot more details, but I don't
believe we would really be able to do much more even then since it
will be up to a court to decide and the only opinion that counts in
the end is that of the judge.

All of expertlaw's points are also well taken.

There may be some considerable downside to the other party taking this
to court, I hadn't thought to ask if they had built a residence
because they would have to be really dumb to try and demand tax
payments in that case. However some people make really dumb mistakes,
such as selling that mobile home if they didn't have clear title.

If expertlaw replies to this I would be very interested in any views
on what action you can take if they sold that mobile home and didn't
have clear title.

I would only like to add that this is exactly the sort of case that
shows up on those instant law courts on TV (not CourtTV). I presume
Judge Judy and all the others pay a hefty appearance fee so if you
file in small claims court I would check out the various TV judges and
perhaps everyone will come out a little ahead on this mess.
Subject: Re: Legal claim on property
From: expertlaw-ga on 26 Aug 2002 09:38 PDT
If additional details are provided, it should be possible to find
specific statutes and probably also to find relevant case law to help
clarify the rights of the parties.

siliconsamurai's point with regard to not being able to provide legal
advice is valid, and thus any answer would have to be provided in the

As I read the scenario, the mobile home was sold with the knowledge
and consent of neil883, and the proceeds of the sale were applied to
the mortgage held in his name. Assuming those are the circumstances, I
don't think much could be made of that sale.

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