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Real Estate Contracts, the Statute of Frauds, and Exceptions to the Statute of Frauds
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Real Estate Contracts, the Statute of Frauds, and Exceptions to the Statute of Frauds

June 11, 2014 Real Estate Development, Sales and Leasing Industry Legal Blog

Reading Time: 3 minutes


The “statutes of frauds” is a doctrine of law that requires certain contracts to be in writing and signed by the person to be charged in order to be enforced.  One such contract that falls under the statute of frauds is a contract for the sale of real property.  Fla. Stat. § 725.01.  Case law has placed additional requirements on contracts for the sale of real property, requiring them to be specific as to the parties involved, the subject matter, the parties’ obligations and the consideration.  Minsky’s Follies of Fla., Inc. v. Sennes, 206 F.2d 1, 3 (5th Cir. 1953).  If the underlying real estate sales contract is not certain and clear as to all of those items then it is unenforceable.  The reasoning for this was articulated by the Federal Fifth Circuit Court of Appeals: “In order that there be a contract [for the sale of real property], the parties must have a definite and distinct understanding, common to both, and without doubt of difference.”  Id.

Similar to nearly every other doctrine of law, and a good example as to why legal disputes can be so confusing, there is an exception to the statute of frauds as it concerns the enforceability of real estate sales contracts.  That exception is called “part performance,” and it can be used to enforce what would normally be an unenforceable oral or faulty written contract for the sale of land.  See Williams v. Faile, 118 So.2d 599 (Fla. 1st DCA 1960).  Under certain circumstances, this exception is available to the buyer when the seller breaches the contact by not conveying the subject property and then attempts to avoid his or her contractual obligations by claiming the underlying contact is barred by the statute of frauds.

The elements of part performance are as follows: 1) the buyer has paid all or part of the consideration; 2) the buyer is in possession of the property; and 3) the buyer has made valuable and permanent improvements to the property with the consent of the seller; or in the absence of such improvements, 4) such facts exist as would make the transaction a fraud on the buyer if the contract is not enforced.  Miller v. Murray, 68 So.2d 594, 596 (Fla. 1953).  If the buyer is unable to prove these elements then he or she cannot overcome a statute of frauds defense to an oral or faulty written real estate sales contract.

When the buyer attempts to enforce an oral real estate sales contract, the buyer’s burden does not stop with proving those elements for part performance.  The buyer must also establish the existence of that oral contract, and all of its required terms, by “clear, definite and certain proof.”  Miller v. Gardner, 144 Fla. 339 (1940).  In Miller v. Gardner, the buyer was able to sufficiently prove the existence and terms of an oral contract through the seller’s admissions obtained during the course of the litigation.  Id.

It is important to note that part performance is not available as an exception to the statute of frauds when the remedy sought by the buyer is money damages.  Instead, part performance is only an exception to the statute of frauds for actions in equity, i.e., where the remedy sought by the buyer is specific performance.  Faile, 118 So.2d at 602.  Specific performance is a remedy where the buyer seeks to have the court force the seller to convey the subject property as he or she originally promised.  Stated another way, no action by the buyer seeking only money damages can ever be maintained when the underlying contract is not in writing.  Id.

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