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Unformatted text preview: ANALYSIS Is there a valid contract of sale? (Statute of Frauds) If not then look at Part Performance or Promissory Estoppel. What is the Quality of title contracted for? Can the seller deliver the quality of title contracted for? Are there any defects in the title? (Check the chain of title and walk the land) How do these defects affect title? Are the defects valid? Can the buyer get out of the contract? This is determined at the end of litigation unless there is a time is off the essence clause, then it is determined at the scheduled closing date. Improvement Analysis Are there defects in improvement that existed prior to contract? Common Law says doesnt matter unless there is an inspection clause? If so, then look at duty to disclose. (misfeasance v. nonfeasance) Modern Trend says we need to look at the duty to disclose? Is defect material? (Subjective v. Objective) Is the defect latent or patent? Is the defect an emotional defect? (stigma statutes) Are we in NY (NY Rule Seller only has duty to disclose material latent defects that seller has created). Did seller contract out of the duty to disclose with an as is clause? (Jurisdictions are split as to whether this is allowed, and those who do allow it say the defects must be specifically disclosed) Has a defect in improvement occurred during escrow period? Common law says it doesnt matter, the improvement is not relevant. Modern trend has 3 views: (1) A substantial defect occurs then buyer can get out, non- substantial defect occurs no remedy and contract goes through as planned; (2) Any substantial defect occurs then buyer can get out, non-substantial defect occurs then the price is abated; (3) The party in possession (or with right to possession if no in actual possession) during escrow bears the burden of loss. POST CLOSING Defect is found? Does the defect go to title or a non-title issue? If the defect goes to improvement: Common Law says as a general rule that there is no remedy. Exception (1) there was provision in the contract that was collateral to the deed (Sale Subject to Buyers Inspection) therefore the merger doctrine does not apply. Now do a duty to disclose analysis Generally the seller had no duty to disclose such defect, however if there was misfeasance or a special relationship then the buyer may sue for breach of duty and receive damages. Modern Trend says that the merger doctrine does not apply so the buyer is always free to sue if the seller has breached his duty to disclose. The seller has a duty to disclose material latent defects. Is the defect material? (Subjective v. Objective approach) Is the defect latent or patent? Is the defect an emotional defect? (stigma statutes) 1 Are we in NY (NY Rule Seller only has duty to disclose material latent defects that seller has created)....
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- Spring '08