Let me go back to my original comment about the merger of the P & S contract and the deed, as I feel I was not clear enough about what happens in states where this merger occurs. States which have codified the Uniform Land Transactions Act would appear to have nullified the concept.
Most obligations in a sale contract(other than collateral)are deemed to be met at the time of the delivery and acceptance of the deed, and are without further effect unless repeated as obligations in the deed itself. Thus the contract is valid only during the time period between the signing of the contract and the delivery of the deed.
I would say that this is the first thing to be determined, because if is in effect, all other points are moot.
But without knowing what state Cee Gee is in, that is too hard to figure out. And that will not stop a lawyer from arguing that #1 committed fraud on #3. Especially if #1 chose the lawyer and the deed does not reference that requirement. The argument will be made the #1 knowingly omitted that from the deed, after promising it in the P&S. So the lawyer will argue that the deed was supposed to meet the requirements of the P&S, but because of fraud by #1 it did not. That brings the P&S into play. And, with it in play, there is now latent ambiguity in the deed. (that is did it intend to ignore the P&S or was there an omitted easement which was not readily seen in the deed which then makes the deed incomplete.) Now we all know that if there is latent ambiguity in the deed that it is usually read to the benefit of the purchaser. That will mean the lawyer will argue that, barring the fraud of #1 the deed would have had the easement which is beneficial to #3 and a judge may very well buy the argument. Of course we do not know #1 was the one who chose the attorney, but if it was the realtor, then same difference. The realtor was paid by #1 selling the property and as such it was in the interest of #1 and the realtor to close the deal. You and I both know that lawyers are really quite good at making any legal document have a latent ambiguity, it is how they make their money.
I think it would take a pretty amazing lawyer and a pretty stupid judge to defeat the rule of merger.
Let me explain the concept:
Upon the acceptance of the deed by the grantee, the terms of the contract for sale are met. The requirements of the Statute of Frauds are met also thereby and nothing further from the contract for sale is enforceable by the grantee unless it is contained in the language of the deed. Due to the Statute of Frauds, parol evidence is barred also. So unless there is a defect in the delivery and acceptance of the deed- mental incompetence, coercion by force or threat of force, lying to a notary under oath, and all of the usual items, the grantee is deemed competent to accept the deed and the consequences. At that point he is legally barred from raising the issue of the contract for sale as he has no standing to do so. The suit would be summarily dismissed.
The argument being made is that of coercion and fraud! The deed is there. Everyone is saying sign this and this and this and there is no time to actually read all that you are signing. Or have you not been to a closing in the last twenty years?
To say that they signed it, they must have read it is naive. A good lawyer could get the deed thrown out. They have gotten lots of other contracts thrown out.
#1--Someone please explain what "P&S" means.
#2--What is the meaning of "road" in the context of the alleged agreement? Does it need to run the full length of the property sold to 3? Does it only need to go so far as to allow reasonable access to 3 prevented by existing natural obstructions? Does it need to meet some basic standard as dictated by some authority other than 1/2 or 3? Without clarity of these points, it is merely a he-said/she-said type of dispute.
#3--Here, such agreements would need to be executed in preparation for the deed to be delivered, not following, except for rare occasions.
#4--Having no more information than that provided by CeeGee, I would offer the thought that 3 and subunits of 3 could access the road, but, only so much of the road as was required in #2 above, not necessarily at a point further removed from the state highway that would be convenient and less expensive for 3.
For what it is worth
Cee Gee is in Maine. I got quite a deal on my present piece of property which I bought in 2000. After the signing of the P and S, the seller realized that she sold me a piece of near ocean front property (400 feet from the ocean)for about a third of what it was easily worth. She and her very wealthy father tried to get out of the deal, but there was no way I was going to allow that.
When we had the closing, I was represented by an attorney and was not present. After execution of the deed, and when I got my copy of the deed, I noticed that the lot sold to me had only half of the frontage contracted for.
We sued for breach of contract. The case progressed with their attempting to negotiate a settlement. When we refused to negotiate, they finally settled by agreeing to fulfill the original contract. It literally took place on the courthouse steps. All along my attorney assured me that the contract would hold and that they would have to convey us the rest of the property which apparently was true.
Holy:
Sorry -- I should have written out "purchase and sales agreement" (for P & S) at least once (I too sometimes chafe at some of the obscure abbreviations on this board). I can't offer details on its contents tho as I haven't seen it and know only what I've been told (as outlined above).
For what it is worth
Which brings us back to the original argument that the deed has a latent ambiguity in light of the P&S agreement and an argument for breach of contract as the P&S has a latent ambiguity that the road was for access (a logical assumption) that was to be deeded to the town (again logical with the call to be brought up to town standards) and thereby should have been completed by said date which did not have the tranfer to the town thereby breaching the contract.
I think a good lawyer could win this for #3. But again it really ain't a survey matter per se.
Holy:
Wait, you haven't seen it? Then how do you know that the road met the requirements by the date specified. Could it be that the P&S required the road to be dedicated to the town? In that case your client has access and you can plat and release.
You need to see that P&S asap.
No, I've not seen the P & S, but everyone I've talked to on both sides seems to agree as to its (written) contents, and no one is suggesting there was an agreement to dedicate the road to the Town. It's a small and very rural town and such a dedication would be highly unusual there. I suspect the "town specs" language was thrown in just because it was the most convenient standard available.
Now if Maine law recognizes the principle that Carl mentioned -- "Upon the acceptance of the deed by the grantee, the terms of the contract for sale are met" -- then I would agree with him that the entire debate is moot. But Merlin's experience suggests that such may not be the case here.
I don't know the answer but one reason for an intention (if any) to allow 3 to use the easement is the State doesn't want too many entrances to its highway.
I would speculate the same thing. Why would there be language in the deed to 3 about building a road if 3 couldn't use it and why, other than a land division, would they need to use it if they already have public access to 3? Now, if I understand this right, the owner of 1/2 is the grantor of 3 and he still owns 1/2. His testimony and the original grantee of 3 would be crucial. Any other parties to the transaction (lawyers, realtors, appraisers, blah, blah). Hopefully the intent of the language can be determined and the parties can settle before somebody sues. Sorry, this is a long thread and I may have missed some details.
I'm surprised the overburdening of easements doesn't come up more often around here. There are many large parcels served by private road easements that are big enough to split. There is a lot of anti-growth sentiment and people bring up all kinds of reasons there shouldn't be more buildable lots created, but the opponents of the splits don't usually bring up the fact that the easement was granted to one lot and dividing that lot into multiple lots is beyond the original intent. There seems to be a lawyer under every rock in these areas, too, so it's even more surprising.
"The argument being made is that of coercion and fraud! "
No one has made that argument. You have jumped several steps beyond what a court would assume. There is absolutely no evidence whatever that the grantee was coerced into accepting the deed. And in US law, there is no requirement for a grantee to sign anything in the process of accepting a deed.
I am not going to respond in kind to your characterization of my comments as "naive" as such labels are unprofessional, rude, and not productive.
Your comments seem to be based on conjecture rather than any thing else.
As for my qualifications to post on this topic, they are as good as any non-lawyer professional surveyor. I have had the privilege of working with several excellent real estate attorneys in my career. I will next be under oath on Tuesday the 3rd and I would present my statements here as based at least on my own anecdotal experience, gained in the real world.
But I will leave that judgment up to the readers of the posts.
Have a nice evening.
We are continuing to go down the road of trying to divine the intentions of the parties from the P & S contract, which has significant legal problems not in the realm of our profession.
As surveyors, we certainly can have our theories about the subject, based on our experiences with land developers, etc., but we don't really have any grasp of the rules of evidence, contract law, the admissibility of parol evidence, the rule of merger, the statute of frauds, court procedures, and all of the other things that a court will be considering.
As Richard stated up front in the discussion, with the agreement of the OP, the question in this topic is a question of law and not surveying. We have had a lot of opinions so far and the lack of a consensus indicates how far afield we are from practicing our own profession. It's all just argel bargel at this point.
Carl,
Several of us have stated that the law has nothing to do with the survey and that it was a matter for the lawyers. We merely expressed our opinions on what legal arguments could be made.
Did you see Merlin's comments about the rule of merger. According to his own personal experiences in Maine, it does not apply there. The P&S would still be an issue.
The agreement seems to be poorly written, but the owner of Lot 3 may be leaping to a conclusion if there is another plausible explanation for including the language about "...to construct a road to town standards...".
The only explanation I can think of would be that Lot 3 would benefit by having a paved road adjacent to their property line, rather than an unimproved (gravel or dirt) road, in the same sense that subdivision CC & Rs require certain levels of construction and maintenance for all the owners.
It seems that if the original intent was for Lot 3 to have the use of the easement, it would be a simple matter to say so.
Mobody knows the answer to this one because the legal outcome may depend on a court decision that could go either way. That doesn't mean we as surveyors should never answer a client's question regarding legal matters. We don't just answer questions of where. If you know the answer to a question about legal matters, there are a lot of uninformed citizens out there that don't know the first thing about property rights, boundaries, easements, etc. Help them out.
We're expected to know more than how to measure things. We're expected to be able to interpret documents like deeds that may contain language that surveyors are supposed to understand.
Thanks to all
Excellent discussion and maybe it's not over. But I'll be out today and would like to thank all who've contributed. As I said in the initial post, this is clearly a legal and not a survey issue. But I want to be able to discuss it intelligently with my client (and maybe his lawyer) and will be much better able to do so now. Thanks again!
-- Cee Gee
Thanks to all-cee gee carl
great post and lots of very good comments
No problem.
The contract would still be void and the grantee without standing to sue:
http://www.mainelegislature.org/legis/statutes/33/title33sec1.html
