All Forum Posts by: Peter Walther

 This has been my experience: 

"As to the remedy plaintiffs seek, the case law reveals that "the equitable remedy of specific performance is routinely awarded in contract actions involving real property, on the premise that each parcel of real property is unique" (EMF Gen. Contr. Corp. v Bisbee, supra at 52). Although certain defenses do exist including, insofar as is relevant here, unreasonable hardship, " 'the court's discretion to grant or deny specific performance of a contract for the sale of realty is not unlimited; unless the court finds that granting a decree of specific performance would be a drastic or harsh remedy, or work injustice, the court must direct specific performance' " (id., quoting 91 NY Jur 2d, Real Property Sales and Exchanges § 204). Moreover, "[v]olitional unwillingness, as distinguished from good faith inability, to meet contractual obligations furnishes neither a ground for cancellation of the contract nor a defense against its specific performance" (Meisels v 1295 Union Equities Corp., 306 AD2d 144, 145 [2003]).  

Richard D. Alba v Jean-claude Kaufmann :: 2006 :: New York Appellate Division, Third Department Decisions :: New York Case Law :: New York Law :: US Law :: Justia

Can you point me to a reported decision where a court ordered money damages in lieu of specific performance when real property was the subject of the dispute?

In my experience, a suit for specific enforcement of a real estate purchase contract is not particularly complex or fact intensive that would lead to extensive time needed for discovery.  Assuming the contract is valid, enforceable, and the buyer can prove (s)he was ready, willing and able to close, a summary judgment might be awarded granting the request.

While every litigant has a right to appeal an adverse judgment, not every request for the appeals court to hear the matter will be granted.  They appellant must show the trial court made an error, either of law or procedure; an insufficiency of evidence; or an abuse of discretion.  If one of those can't be shown, the request for appeal may be denied or the court may hear the appeal and return a per curium affirmed (PCA) based simply on the briefs, both of which will shorten the length of time to conclusion.

I looked at the CO promulgated real estate contract, and it has a provision that the prevailing party will be awarded their costs and expenses including attorney's fees, so the parties better be sure of the strength of their positions.

If it were me, I'd probably push for mediation as soon as possible.  I've found that a good mediator will identify strengths and weakness for both parties and help them resolve their differences.  I would also ask my attorney about the advisability recording a copy of the contract or an affidavit of interest as I think it's possible the seller may have found someone willing to pay more for the property and I'd want a third party to be aware of my contract interest in the property.

Lastly, I'd make sure the attorney I hired specializes in real property law, particularly in the county where the property lies.

 My thought exactly.

An uncontested foreclosure is often the best way to resolve issues with subordinate lien holders though I've also contacted some and explained they were about to be named in a foreclosure and suggested that could be avoided if they just released the property from their judgment/lien.

I had more than one title claim because a title examiner wasn't aware of the difference between a foreclosure and a DIL.

Thanks. To expand a little on what is mentioned the underwriter's guideline, a DIL does not extinguish subsequent liens, so if the borrower has judgments against him/her/it that attach to the property, the DIL grantee takes title subject to them and may have difficulty getting them released later without payment. In addition, a DIL does not automatically satisfy the underlying mortgage/DOT so if you accept a deed from the DIL grantee you may find a title insurer will require a release or sat of it before insuring.

I think you'll find most, if not all title insurers, will require the DIL to be dated and executed subsequent to default in order to insure.  In addition, the Grantor will probably be required to sign the same seller's affidavit that are needed for a non DIL closing.  Here's a short treatise by a title insurer:

A deed in lieu of foreclosure is a deed given by the owner of mortgaged property to the holder of the mortgage or its designee where the mortgage is in default and foreclosure is a possibility. A deed is given and accepted as an alternative to ("in lieu of") foreclosure. Unlike a foreclosure, a deed in lieu of foreclosure does not extinguish any of the liens and encumbrances affecting the property.

Most courts recognize the execution of a deed in lieu of foreclosure in a transaction subsequent to the original mortgage transaction as a legitimate alternative to foreclosure proceedings. However, deeds in lieu of foreclosure can be subject to judicial attack by their grantors and their grantors' creditors.

Grounds for attacks on deeds in lieu of foreclosure include the following:

• That the deed was an equitable mortgage - that the parties intended the deed to be given as security for a debt and that the deed was not an absolute conveyance.

• That the deed is either a preferential or fraudulent transaction within the purview of the provisions of the federal Bankruptcy Act or any other related state law.

• That the deed is a device to clog a mortgagor's right of redemption.

• Unfairness of the consideration.

• Coercion, fraud, oppression, duress, and undue influence.

• That the deed is not subsequent to the execution of the mortgage but contemporaneous with it.

• That the grantor/mortgagor was insolvent at the time of the execution of the deed.

An estoppel affidavit (executed and acknowledged by the grantor/mortgagor, attesting to the fairness of the transaction, the consideration exchanged, the value of the property, and other factors showing an intention to make a genuine transfer) or a recital (inserted directly in the deed) are supporting documents used to forestall challenges to these transactions.

State law and local title standards must be consulted in regard to the consideration and treatment of deeds in lieu of foreclosure.

This is a recent decision where a title insurer denied coverage to an insured owner who had been named in a suit to rescind the deed into the insured.  The insurer claimed the Complaint alleged matters which were excluded from coverage and therefore liability was denied.  The insured sued the insurer, and the trial court agreed with the insurer and dismissed the insured's complaint.  The insured appealed and the appeals court agree with the insured and reversed the lower court's decision.

I handled a similar title claim where the complaint alleged among other things, the insured knew or should have known about the Plaintiff's prior contract and therefore the deed into my insured should be rescinded.  I believed the company had liability because the allegation "should have known" was outside the policy exclusion.  There was lots of discussion in the department about whether the matter was in fact covered but my opinion ultimately prevailed.  The conversation, as well as this decision, left me wondering how many insureds are denied policy coverage and cannot afford to bring a suit against the insurer and are unable to recover their loss.

There's also a considerable risk that the person you're dealing with isn't actually the owner of the property.