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When Is Part Performance ‘Part Performance in Real Estate Cases’?

New York Law Journal

Adam Leitman Bailey and John Desiderio discuss the issue of “part performance,” the doctrine of which can overcome the Statute of Frauds in circumstances when parties enter into unwritten deals and don’t contemplate all the possible circumstances that might arise in the course of their dealings.

In my 27 years as a real estate litigator, until recently, I have never used the sword of part performance as much as I have been relying on it now. One of the reasons is the extreme desire of the real estate investor to get rich quickly at the expense of everyone else using deliberate cunning, deceitful actions. Another common trait in these actions has been a problem with the language barrier of the other real estate party from another country. I also believe that some of the new real estate entrants are not as street smart or educated on the rules of the game as their predecessor real estate investors, allowing them to be taken advantage of. In addition, real estate players may not be working as hard as their parents to do their due diligence and paper deals. As far as their advisors, the number of qualified real estate attorneys and advisors may be lacking as very few real estate attorneys came into existence during the years between 2008 and 2012. Ergo, the rules of part performance must be understood and asserted in more cases.

However, it is a difficult doctrine to prove as we learned in a recent case last year, Toobian v. Golzad, 193 AD3d 778, 780, 147 NYS 3d 61 (2d Dept. 2021), that proper planning can turn a losing case into a winner:

The doctrine of part performance is not easily applied in practice. A party who relies on the part performance exception must demonstrate that his or her actions are “unequivocally referable” to the oral agreement which he or she seeks to establish. “Unequivocally referable” conduct is conduct which is inconsistent with any other explanation. It is insufficient that the oral agreement gives significance to plaintiff’s actions. Rather, the actions alone must be unintelligible or at least extraordinary, explainable only with reference to the oral agreement. Significantly, the doctrine of part performance is based on principles of equity, in particular, recognition of the fact that the purpose of the Statute of Frauds is to prevent frauds, not to enable a party to perpetrate a fraud by using the statute as a sword rather than a shield. Toobian v. Golzad, 193 AD3d 778, 780, 147 NYS 3d 61 (2d Dept. 2021). (Internal quotes and citations omitted) (Emphasis added).

Non-written agreements, made between individual persons, and oral promises that are ancillary to written agreements, including ancillary promises to written agreements made between commercial enterprises, no matter how large or small the enterprise, are enforceable, whenever facts are present that satisfy the doctrine of part performance. The doctrine of part performance is an exception to the proscriptions of the Statute of Frauds (General Obligations Law §§ 5-701, 5-703(4)), as recognized and applied under the equity powers of the courts.

As explained in Messner Vetere Berger McNamee Schmetterer Euro RSCG Inc, v. AEGIS Group PLC, 93 NY2d 229, 235 (1999),

the doctrine of part performance is based on principles of equity, and specifically, recognition of the fact that it would be a fraud to allow one party to a real estate transaction to escape performance after permitting the other party to perform in reliance on the agreement.

The equitable ground of the doctrine is codified in General Obligations Law §5-703(4):

Nothing contained in this section abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance.

The Court of Appeals, in Woolley v. Stewart, 222 NY 347. 350 (1918), cited in Messner, stated the essential basis of the doctrine as follows:

A party to [an oral agreement to convey an estate or interest in real property], other than a lease for a term not exceeding one year, is nugatory and unenforceable, [and] a party to the agreement may legally and rightfully refuse to recognize or perform it. The breach of a void agreement is not a fraud or a wrong in law. He may, however, withdraw himself from the policy and defense of the statute, or waive its protection, by inducing or permitting without remonstrance another party to the agreement to do acts, pursuant to and in reliance upon the agreement, to such an extent and so substantial in quality as to irremediably alter [the] situation and make the interposition of the statute against performance a fraud.

Examples of Part Performance

In ‘Walter v. Hoffman,’ 267 NY 365 (1935), a seller brought an action for specific performance against the buyer of the seller’s property based upon an oral agreement the parties had entered into for purchase and sale of the property. The seller sought to require the buyer to pay the unpaid balance of the purchase price and to accept the deed for the property. The court affirmed the judgment of specific performance upon facts showing that the defendant buyer had taken exclusive and sole possession of the property, had used the property as her home, and had made alterations and improvements to it. The court found that in this case there was part performance “by both parties” that was unequivocally referrable to the alleged oral contract.

In applying the equities, the court noted that “courts may properly take into consideration the acts or part performance by both parties.” 267 NY at 370. (Emphasis added). The court explained:

[T]he problem is whether part performance of the oral agreement creates irremediable injury to the suitor if complete performance is withheld. Unless there has been part performance by the suitor, there has ordinarily been no change of position by him, and therefore no injustice to him if the contract is not performed. To the extent therefore, the acts of part performance relied on must be acts of the suitor. None the less, resultant injustice or injury may be increased, or indeed, arise from subsequent acts performed by the other party. That is true, notably, where, as in this case, a seller has given possession or real property to the buyer and the buyer has then used the property. (Emphasis added) (Citations omitted).

The court held, on evidence that defendant’s “possession has been long continued in the intervening time the buyer has enjoyed the benefit of complete ownership, and the seller has been unable to dispose of the property[,] [r]eturn of possession under such circumstances might be an incomplete measure of justice…[since] as we have said, there has been an alteration of the property. True, the alteration may be an improvement. None the less, if the property is returned to the seller, she will receive something different from what she owned before and something that she may not want.” (Empasis added) Id., at 370-371.

In Pinkava v. Yuriw, 64 AD3d 696, 882 NYS2d 687 (2d Dept. 2009), the plaintiffs (husband and wife) alleged an oral agreement with the defendants (the wife’s sister and husband), to pay $150,000.00 over time to the defendants, in order to purchase the defendants’ interest in an apartment building that the plaintiffs and defendants owned together pursuant to a joint venture whereby the parties had purchased and managed the property for profit. The plaintiffs paid the defendants an initial amount of $51,000.00 towards the purchase price and agreed to pay the balance over time (and the evidence showed that plaintiffs were meeting their obligation and had assumed sole responsibility for management of the building).

Upon the death of the sister’s husband, the plaintiffs offered to pay the balance of the purchase price, tendered a check to do so, and ordered a title search on the property. The sister refused to accept the plaintiffs’ check, and the plaintiffs then learned that the defendant sister had conveyed her interest in the property to her son.

The plaintiffs sued to set aside the conveyance to the sister’s son, to impose a constructive trust upon the defendants’ interest in the property, and for specific performance. The court affirmed the denial of the defendants’ motion which sought to dismiss plaintiffs’ claims as barred by the Statute of Frauds, and the court also affirmed dismissal of defendants’ motion for summary judgment on defendant’s counterclaims.

The court found that “in response to the defendants’ prima facie showing that enforcement of the alleged oral agreement was barred by the statute of frauds, the plaintiffs raised triable issues of fact as to whether they had partially performed in a manner unequivocally referable to the its terms,” concluding that “there is evidence from which a trier of fact might conclude that the plaintiffs’ conduct was extraordinary and explainable only by a reference to the oral contract.” 64 AD3d, at 692-693.

The court also determined that, “accepting plaintiffs’ factual allegations as true, and according them the benefit of every favorable inference, as we must,” the plaintiffs’ allegations of payments to the [defendants] and their contribution of time managing the property was sufficient to establish the transfer in reliance and unjust enrichment elements of a cause of action for a constructive trust.” Id., at 693.

“Agreement To Agree”

As held, in Frankel v. Ford Leasing Development Company, 7 AD3d 757, 776 NYS2d 905 (2d Dept. 2004), a “[l]etter [that] expressly contemplated a more complete and formal contract and omitted many essential terms of a contract,” was only an agreement to agree “which is unenforceable under the statute of frauds.” And, the letter was unenforceable even though “the parties engaged in extensive negotiations and exchanged proposed purchase agreements.” The court noted that the extensive negotiations and exchange of proposed agreements “further demonstrated the absence of a complete agreement.”

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