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Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 6196
Experience:  28 years of experience in General Practice, Real Estate Law and Estate Law.
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Can a party selling a house go against a verbal purchase

Customer Question

can a party selling a house go against a verbal purchase agreement and sell it to another party even if you had a verbal consent from the person selling the house
Submitted: 5 months ago.
Category: Real Estate Law
Expert:  Attyadvisor replied 5 months ago.

Welcome and thank you for your question. I will be the professional that will be assisting you.

Expert:  Attyadvisor replied 5 months ago.

The statute of Frauds requires real estate contracts to be in writing to be enforceable. That being said verbal contracts are still contracts there just a little harder to prove. Do you have anything in writing?

"1335.04 Interest in land to be granted in writing.

No lease, estate, or interest, either of freehold or term of years, or any uncertain interest of, in, or out of lands, tenements, or hereditaments, shall be assigned or granted except by deed, or note in writing, signed by the party assigning or granting it, or his agent thereunto lawfully authorized, by writing, or by act and operation of law.

1335.05 Certain agreements to be in writing.

No action shall be brought whereby to charge the defendant, upon a special promise, to answer for the debt, default, or miscarriage of another person; nor to charge an executor or administrator upon a special promise to answer damages out of his own estate; nor to charge a person upon an agreement made upon consideration of marriage, or upon a contract or sale of lands, tenements, or hereditaments, or interest in or concerning them, or upon an agreement that is not to be performed within one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized.

No action shall be brought to charge a person licensed by Chapter 4731. of the Revised Code to practice medicine or surgery, osteopathic medicine or surgery, or podiatric medicine and surgery in this state, upon any promise or agreement relating to a medical prognosis unless the promise or agreement is in writing and signed by the party to be charged therewith." http://codes.ohio.gov/orc/1335

Expert:  Attyadvisor replied 5 months ago.

"The Sixth District Court of Appeals in the April 23, 2010 case entitled Saber Healthcare Group v. Starkey upheld the well settled law in Ohio that mere payment of part of a verbally negotiated purchase price for land, without any signed written agreement or other signed writing will not be enforceable in courts of law.

In Ohio (and most other jurisdictions), the “Statute of Frauds” controls, which basically is an ordinance (originating from a 1619 Act of Parliament) establishing that certain contracts must be memorialized in a signed writing, to be enforceable. Specifically, Ohio’s Statute of Frauds (ORC Sec. 1335.05) provides that “no action shall be brought upon a contract or sale of lands or interest in or concerning them, unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith”.

In the Saber Healthcare case, Saber Healthcare and Starkey entered into negotiations concerning the sale and purchase of Starkey's property. Saber gave four checks to Starkey, over a six month period totaling $35,000.00. Starkey cashed all four checks and used a portion of the funds towards paying down the mortgage on the property. Saber produced a draft purchase agreement and sent it to Starkey, who declined to sign the agreement. The draft agreement contained a provision characterizing the $35,000 as a down payment fully refundable in the event the transaction was not closed. Starkey, however disputed that the draft accurately contained their verbal agreements never signed same, and never returned any money to Saber.
Saber, obviously upset that it was out $35,000 and would not get the property on its terms, sued to get its money back on the basis of “unjust enrichment.” The trial court agreed with Saber, and Starkey appealed, claiming: 1) the payments were not unjust enrichment; and 2) alternatively, there was a contract formed and Saber should be ordered to purchase the property.

The Sixth Circuit first confirmed “unjust enrichment”, because all the elements established by Ohio Law were present, namely: 1) a benefit was received by one party from the other; 2) the receiving party was aware of the benefit; and 3) retaining the benefit by the receiving party, without paying for it would be unjust under the circumstances. Starkey got the $35,000 and still had the property. Being allowed to keep both would be unjust.

Starkey then argued that a contract had been formed and Saber breached it. The Sixth Circuit, however, reiterated the general rule regarding the Statute of Frauds. Basically, without a signed writing, there was no enforceable contract and that mere payment of part of the purchase money, without a written memorandum or other written agreement to sell, did not take the contract out of the Statute of Frauds.

Starkey’s final argument was that the Saber payments should be deemed ‘part performance” of the contract to buy the real estate, and “part performance” is a recognized exception to the general rule of the Statute of Frauds. The Sixth Circuit recognized this exception to the general rule, but held it not applicable in cases like Saber Healthcare v. Starkey where the party claiming part performance (established a contractual relationship) was not prejudiced or adversely affected." http://www.ohiorelaw.com/2010/04/oral-contract-to-buy-real-estate-is-not.html

Do you have anything with the sellers name on it, such as an email?

Expert:  Attyadvisor replied 5 months ago.

Please do not hesitate to ask me any additional questions that you may have with regard to this matter as it would be my pleasure to assist you.

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The Attorneys on the site do not receive credit for their time or work if the customer does not rate us positively. There is no additional charge to you for a positive rating and you can still receive a refund. Thank you for your consideration.

Expert:  Attyadvisor replied 5 months ago.

Please ignore the additional services request.