All Forum Posts by: Peter Walther

 Good luck.

 Err in haste, repent at leisure

I've found many properties with title issues wind up with unpaid property taxes so checking on delinquent taxes, tax deed sales and lands available for taxes might help you identify some.

Congratulations, I'm glad it's working out for you.  Did you find out why the seller wanted to back out?

I see several problems with this model.  First, who collects the rents and distributes payments? The owner, the lender or a third party?  Second, what priority does your lender's claim to rents have?  Taxes have to be paid, so does insurance, what about maintenance?  Who gets to decide if a repair that appears to be needed is real or fictious, created to reduce the net available to the lender?  Next, what sort of lien on the net proceeds do you envision?  With a mortgage the borrower signs a Note and a mortgage creates a lien on the property to secure the debt which must be recorded in the public records to provide notice to third parties.  In your explanation nothing is recorded to notify the world of your claim to the income.  I suspect the owner could sell the property to a third party free and clear of your lender's claim to the income stream.  I'm pretty sure if the owner filed bankruptcy the Trustee would have your claim to the income disallowed and since the owner does not have personally liability for the "debt" you're not even an unsecured creditor.  Also, I think this could not be used as secondary financing.  I suspect in most mortgages the Borrower entering into this type of agreement without the written consent of the prior lender would be a default.

What debt coverage ratio do you think would be fair considering the risk?  $1 lent for $10 of income?  $1/$50, $1/$100?  While this kind of investment might be of interest to someone who "invests" in crypto, I don't see this going mainstream.

 This decision gives an excellent explanation of when specific performance might be denied.

EMF Gen. Contr. Corp. v Bisbee (2004 NY Slip Op 02288)

 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.