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LAW OFFICES OF LEONARD P. BUSCEMI
 
Specific Performance -Oral Contract to Convey Land - Dead Man’s Statute

Estate of a bother and uncle who left no will and was survived by five sisters, two nieces and nephews defended against a claim for Specific Performance Of Oral Contract to Convey Land brought by the deceased’s domestic partner who claimed a right of survivorship and 100% ownership of a townhouse property.

The surviving partner alleged in the complaint that he was unable to be present for closing on the property and so Decedent purchased and titled it under his name only. The surviving partner alleged that they agreed to jointly own the property. However, for the next thirty years until his death, the decedent made no will bequeathing and no deed gifting his sole ownership and title. No written document was ever prepare or signed and dated memorializing this alleged oral contract to convey land.

The complaint alleged the partners each would contributed toward the purchase and improvement of the townhouse but whether payments to decedent by the surviving partner were rent or mortgage payment was called into question. After decedent died, surviving partner vacated the townhouse that was set to be sold by the estate and filed a memorandum of lis penden to stop the sale of the townhouse. The parties then agreed to allow the sale to go forward and entered a Consent Order that property’s sale proceeds were held in escrow by the Clerk of the Court pending resolution of the suit.

Virginia Code § 8.01-397 (commonly known as the “Dead Man’s Statute” proscribes that no judgment or decree shall be rendered against and estate based only on uncorroborated testimony. (protecting an estate against the hazard of spurious claims when the deceased is incapable of testifying. Virginia Supreme Court in Virginia Home for Boys and Girls v. Phillips, 688 S.E.2d 284, 279 Va. 279 (2010) was determinative on the issue. That case involved a nephew’s testimony that he had a kitchen table conference with his aunt and uncle who promised him their farm when they both died, if he worked it for them during their lifetime. Even though the nephew’s testimony was found to be credible, the Supreme Court held that no judgment or decree could be rendered against the estate based only on uncorroborated testimony of the person asserting ownership. Similarly, in this case, the testimony of the surviving partner that a conversation took place where he and the decedent decided to jointly own this townhouse with right of survivorship was not enforceable where there was no will, no deed, no writing and no corroboration of such an agreement by anyone other than the plaintiff.

 
Suit for Partition and Sale of Property Owned as a Tenancy in Common

Three siblings inherited their deceased mother’s home (owned in fee simple) and thereby became tenants in common of the property. Only one sibling, lived on the property and paid no rent. A physical division of the property into three parcels was not legally possible. A suit for partition and sale property was instituted by one of the siblings in Arlington County Circuit Court, seeking division of the property by sale for the common benefit of all the siblings. Partition by sale of the property would have been the only equitable solution. On the eve of such proceeding, the siblings reached an agreement that allowed the sibling residing there to obtain financing, to purchase the other siblings shares of the property, own it solely, and remain living there.

 
Declaratory Judgment - Real Property - Commercial Lease Dispute
Landlord suit against two owner medical clinic tenant for declaratory judgment and breach of commercial lease/contract involving the interpretation terms involving time of the essence, notice to quit, and failure to pay Consumer Price Index rental increases were at issue. At trial, the presiding judge found as a matter of law that the lease was null and void ab initio (from the beginning) under Virginia Code § 13.1 -613 when it was discovered that tenant medical clinic was not incorporated and an owner signed the lease representing it was incorporated. The court’s ruling left the tenants in the position of having no valid lease. Facing eviction, the tenants settled with the landlord, paying rental increases, the landlord’s attorney’s fees and costs and entering another lease to include as tenants, the clinic’s newly formed corporation and the two owners as personal guarantors of the new lease.
 
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