Daily Development for Wednesday, September
Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
STATE OF FRAUDS; DESCRIPTION OF PROPERTY: The
failure to establish a specific legal description of property to be conveyed
until the time for performance of the conveyance contract does not render the
contract unenforceable for failure to satisfy the Statute of Frauds where the
contract describes the larger parcel from which the land to be conveyed is to be
selected at the time for performance and where there is external evidence of the
parties intent at the time of contracting as to the general location of the
property to be conveyed.
C470 Joint Venture v. Trizec Colorado, Inc.,
176 F.3d 1289 (10th Cir. 1999).
The parties entered into a Covenants
Agreement providing that Vendor would, from time to time and at the Vendee's
request, convey and/or dedicate from a particularly described parcel of land,
such easements, rightsofway or other accessways as necessary or required for the
construction and operation of an interchange with a nearby highway. The
amount of land could not exceed five acres. It is not clear that any specific
consideration was paid for this agreement, as it appeared to be part of a larger
contract. Vendee had pledged to the Highway Division that it would provide this
At the time the parties entered the Covenants
Agreement, they knew the planned route of the highway and a street that it would
cross already existed. Vendee later requested that Vendor's successor in
interest perform the covenant by conveying a rightof way to the county and
provided Vendor's successor with a metes and bounds description of the property
to be conveyed. Vendor's successor
sought to have the covenant declared unenforceable under Colorado law for
failure to describe the property with adequate specificity and Vendee
counterclaimed for specific performance.
The court held that the intention of the
contracting parties could be determined with reasonable certainty from the
language of the instrument. The Vendee had the authority to designate specified
properties within a relatively narrow range. Therefore, Colorado's Statute of
Frauds had been satisfied.
Comment: It is hard to argue with the result.
The area within which the designations were to be made was relatively narrowly
circumscribed. In effect, the entire area was held in "limbo" until
the designations were met, but the overall area was not significantly larger
than that to be conveyed. Further, the agreement seems to be a reasonable
approach to address a difficult problem.
Finally, the other side made the mistake of
asking to annul the agreement. This wasn't going to work. There might have been
a chance that the agreement was not specific enough to support specific
performance, but the court is not going to throw out a bargained for commercial
agreement at this level of specificity just because the exact lot line are not,
and could not, be identified in advance.
STATE OF FRAUDS; PARTIES: The intent to
benefit a third party must be apparent from the terms of a contract for the
conveyance of land, however, the third party beneficiary need not sign or be
named in the contract.
C470 Joint Venture v. Trizec Colorado, Inc.,
176 F.3d 1289 (10th Cir. 1999), described more fully under the heading:
"Statute of Frauds; Description of Property."
The holder of the right to have the property
transferred for highway purposes was not in a position to designate the
property. Only the Highway Division could do that. It would have been wise for
the drafter to provide either specifically that the Highway Division identifies
the property or to establish some mechanism whereby the promissee, having been
notified by the Highway Division, passes the information along. But even without
such provisions, the purposes of the parties were clear and the deal deserved
in the Daily Development section generally are extracted from the Quarterly
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