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legalgems, Arbitrator
Category: Real Estate Law
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Experience:  Just Answer consultant at Self employed
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In 2015 we did a contract with a young man to purchase

Customer Question

In 2015 we did a contract for deed with a young man to purchase 17 acres and the farm buildings and house, Since Jan 1 2016 he believes that everything left at the farm is his even though my husband had a verbal agreement to be able to clean up his salvage yard on that 17 acres. He now has put up no trespassing signs and has threatened my husband that he will call the sheriff if he comes to get the rest of the property. I believe we legally own everything until he has paid the contract in full. What does the law say in South Dakota?
Submitted: 6 months ago.
Category: Real Estate Law
Expert:  legalgems replied 6 months ago.
A few minutes please as I look into this.
Expert:  legalgems replied 6 months ago.
Thank you for your patience as I looked into this. A real estate transaction is subject to the statute of frauds, meaning it has to be in writing. Printer Friendly 53-8-2. Contracts required to be in writing--Statute of frauds. The following contracts are not enforceable by action unless the contract or some memorandum thereof is in writing and subscribed by the party to be charged or his agent, as authorized in writing: (1) An agreement that by its terms is not to be performed within a year from the making thereof; (2) An agreement made upon consideration of marriage, other than a mutual promise to marry; (3) An agreement for sale of real estate or an interest therein, or lease of the same, for a period longer than one year. However, this does not abridge the power of any court to compel specific performance of any agreement for sale of real estate in case of part performance thereof; and (4) An agreement for a loan of money or for an extension of credit, which agreement may be enforced by a beneficiary for whom the agreement was made, including, but not limited to, vendors of agricultural goods, services or products. A loan or an extension of credit made pursuant to § 51A-12-12 or chapter 54-11 is specifically exempt from the provisions of this section. Generally, for real estate transactions, fixtures (property attached to the real estate, such as light fixtures that are permanently attached - ie a chandelier - versus a plug in floor lamp, which is personal property) remain with the property, and personal property is not part of the contract unless expressly agreed to. However, most contracts will state that the contract is the whole of the agreement, and that there are no other oral or written agreements regarding the transaction. This helps exclude testimony/evidence of side agreements. Normally, if a buyer is interested in obtaining title to the personal property, they will include a property inventory list when submitting the purchase offer, and that will be addressed in the contract. There is a statute: 43-4-18. Incidents included with thing transferred. The transfer of a thing transfers also all its incidents unless expressly excepted; but the transfer of an incident to a thing does not transfer the thing itself. So as you can see, there is a contradiction, and the situation can be construed both ways, depending on how it is argued. I researched case law and could not find any relevant case, but that is likely attributable to the fact that only appellate decisions are published, and since 90% of cases settle, along with the fact that most people don't have the funds to pursue personal property issues to the appellate level since that is very expensive and time consuming. So in sum, the person who is asserting a claim for the personal property would attempt to introduce the oral agreement (oral agreements are binding-they are just more difficult to prove; it comes down to who the court believes; for example, if the original owner was allowed to enter the premises without being obstructed and remove some of the items, that would indicate the side agreement was in existence). The buyer would argue that the totality of the agreement clause (if contained in the contract) precludes evidence that indicates there was a side agreement. The seller would argue that only fixtures permanently attached remain with the property; the buyer would argue that the seller's failure to remove the property prior to the close of escrow indicates an intent to include those in the property transfer. For example; please see this form that specifically addresses the inclusion of personal property: If that form was completed and there was no personal property mentioned, that would indicate it would belong to the seller. Since there are so many variables, I would encourage you to hire an attorney to write a demand letter requesting return of the personal property; at that point, if there is a refusal, one can sue for either the replacement cost of the property, or specific performance (return of the property) and the attorney would need to prepare a memorandum of points and authorities highlighting contractual clauses that support the contention that the seller had the right to retrieve the property at a date after the closing.
Expert:  legalgems replied 6 months ago.
Thank you for using Just Answer.I hope the information provided was useful.Here is a link to the bar association's legal referral site: you have further questions please post here; otherwise kindly--- Rate Positively---so the site credits me for assisting you.Thank you and take care!

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