VENDOR/PURCHASER; MERGER: Provision in contract of sale stating that sellers would retain beach rights in transferred property benefitting seller's retained property is inneffective to create beach rights when deeds to not reflect the creation of such rights. Alexy v. Salvador, 630 N.Y.S.2d 133 (App. Div. 1995).
The transaction was somewhat complex - sellers transferred their entire parcel - a vacation lodge - to buyers, who then retransferred a small portion of the property - a single family residence - back to sellers. The contract made clear that the residential property would enjoy beach privileges on the lodge property, and in fact the parties' actions were consistent with that understanding for a substantial period (but the use was not continuous enough to qualify for prescriptive rights).
Held: The prior agreements regarding the sale of land merged into the deed of conveyance absent clear intent of the parties that prior agreement terms survive or that there exists a collateral undertaking. The creation of easement rights, however, cannot be collateral to the transfer of property, as it is central to the purpose of the contract.
Note: Although the present owners of the lodge were successors to the original purchasers, the court made nothing of this, so we can assume that the current owners were aware of the contract understanding.
Comment: On first blush, the result may appear unjust as the contract seems to support the probable intention to give the easement and the failure to include the easement in the deed back to sellers probably was an oversight. The transaction in this case was almost twenty years old, however, and perhaps the court was influenced by the lack of any clear evidence explaining why the deeds did not contain the easements and why the sellers did not object at that time.
VENDOR/PURCHASER; MISREPRESENTATION: Buyer may recover down payment even without tender and demonstration of ability to perform if seller has misrepresented full ownership and in fact has only a partial ownership in property. Spivak v. Farkas, 629 N.Y.S.2d 45 (App. Div. 1995).
The seller's title in only a seven-eighths interest was seen by the court as "incurably defective", and seller's statement that it owned full title was found to be a misrepresentation justifying plaintiff's cancellation of the contract. Note: The court does not make clear why the seller could not have cured the defective title prior to closing.
Comment: Apparently this case avoids application of a relatively strong New York rule that buyer must show good faith ability to close in order to invoke equitable assistance.
VENDOR/PURCHASER; RESCISSION; MUTUAL MISTAKE: Seller may rescind land sale contract where at the time of contracting neither party knew the number of acres involved, the contract stated the number of acres to be approximately 34, and the actual acreage, approximately 45 acres. D'Agostino v. Harding, 629 N.Y.S.2d 524 (App. Div. 1995).
The confusion in this case arose because the 45 acre parcel was located in two counties. The 34 acre figure was obtained from one county's tax map and reflected only the parcel acreage in that county.
Comment: There is no showing that the seller believed that the parcel was any different in shape and boundaries than that which it agreed to sell. Under the circumstances, it is difficult to comprehend why the difference in size would have created a significant detriment to the seller's interest, justifying rescission. The seller's real problem, apparently, was that it had restricted the property to prevent the use of mobile homes and had not set forth the restriction in the contract of sale.
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