Another Real Estate Contract Succumbs to Indequate Property Description

Originally published by Charles Sartain.

Co-author Rusty Tucker

Dayston v, LLC v. Brooke, voided a real estate contract because it failed to satisfy the Texas statute of frauds. Let’s see how the drafting mishap occured.

The description

A Farm and Ranch Contract between Dayston as seller and Brooke as buyer described the land to be conveyed this way: (Caveat, this is abbreviated, the entire description is in the opinion): “[t]he land … described as follows: 3379 FM Hwy 913, 515 Tennyson Dr, and +/- 81.50 DC … or as described on attached … Exhibit A.”, which further described the land as:

“3379 FM HWY. 913 …

To Include:

Legal: Acres: 8.290, … ;

Legal: Acres: 1.740, … ;

515 TENNYSON DRIVE …

To include:

Acres: 8.246, … SIMS CREEK SUBD, TRACT 1;

Legal: Acres: 10.290, … ;

81.50 Acres – Part of … (1.91 ACS) Parcel

*Please note the 81.50 acre parcel is being surveyed and renamed.Title company will convey the new legal address once completed.”

The claims

Brooke sued Dayston asserting that the contract was void due to an insufficient legal description and asked for return of earnest money.

Dayston replied that the description was sufficient, that there was a genuine issue of material fact because a person (Brooke) familiar with the area could locate the land with reasonable certainty, the contract allowed a survey “within 5 days of the effective date” of the contract, and the survey was referenced in the contract, thus satisfying the statute of frauds.

The trial court declared the contract void for an insufficient legal description and ordered the earnest money returned. The extrinsic evidence was inadmissible to cure the inadequate description.

What is required for a sufficient legal description?

You should know these rules pertaining to the statute of frauds:

• The writing must furnish “within itself or by reference to other identified writings then in existence, the means or data by which the particular land to be conveyed may be identified with specific certainty.”
• Although courts may construe multiple writings prepared for the same transaction as one contract, any documents referred to and incorporated in the contested agreement must be in existence at the time the parties executed the contested agreement.
• If the writing and other identified writings do not sufficiently describe the property to be conveyed, then it violates the statute of frauds and is voidable.
• Although the description does not have to include metes and bounds, it must furnish enough data to identify the property with reasonable certainty.
• When it is possible that more than one tract of land fits the description, the statute of frauds is not satisfied (eg., an unidentified portion of a larger tract).
• Although courts allow parol evidence when the writing contains a “nucleus of description”, the extrinsic evidence cannot be the sole means to “supply the location or description of the land,” but can only help identify the land “‘from the data in the [writing].’”
• A street address, standing alone, may be insufficient if there is uncertainty about the amount of land in the conveyance.

On its face “+/- 81.50” acres was an indefinite amount of land. The exhibit added clarity but still described the land as two street addresses, listing the accompanying acres, and 81.50 acres from two larger tracts of land. The description was insufficient to identify the land with certainty.

Dayston argued that the insufficient legal description was cured, the property could be located with reasonable certainty because Brooke personally visited there on many occasions, and a survey was incorporated into the contract by reference.

These arguments were unpersuasive because the “knowledge and intent of the parties will not give validity to [an agreement].” Because the parcel was being surveyed and the new legal address would be provided “once completed,” the survey was not “then in existence” at the time of the contract was executed as required under the law. Dayston’s extrinsic evidence was inadmissible.

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