Real Estate Contracts and the Doctrine of Equitable Conversion in Washington: Dispelling the Ashford Cloud
Publication year | 1983 |
I. Introduction
The installment real estate contract is often called the "poor man's mortgage."(fn1) Historically, it was used by sellers to finance land sales when there was no institutional funding available or when the buyer could not meet institutional lender criteria for funding. Once again, due to high interest rates and the unavailability of institutional funds, sellers are financing property sales with the poor man's mortgage.
Given the long history and recent increased use of the installment real estate contract (hereinafter referred to as the "installment contract"), it might be expected that the underlying doctrine was well-understood and furnished a high degree of certainty and predictability to the parties. Sadly, this is not so. Much confusion exists in Washington law about the nature of the respective interests of the buyer and seller in property that is subject to an installment land contract. Most of the confusion results from one line of decisions that held that the buyer had
In addition to the confusion created by
It is the principal thesis of this article that property and contract questions should not be solved independently and are most usefully approached in a distinct order. Because the installment contract divides the incidents of property ownership usually associated with legal title between the parties to the contract, it should be treated differently than the earnest money contract in which the incidents of ownership are not divided. In addition, it is important to first answer some remedial questions before proceeding to make decisions about the property interest of each party to the contract. To support this thesis, this article will explain in detail how the
II. The Forfeiture Clause and Equitable Conversion
Prior to the appearance of the
Although the judicial treatment of the installment contract forfeiture clause and its relationship to other remedies were established early and fairly consistently applied,(fn7) a separate line of cases appeared wherein the courts stated that the purchaser had
The notion that the purchaser had no interest in the property that was the subject matter of the contract if the contract contained a forfeiture clause blossomed in
The reasoning in these cases drew immediate criticism. The dissenting judges in
The
The law of property jealously guards the formalities accompanying the transfer of property, particularly real property, lest that bundle of rights we call "ownership" will not be acquired.(fn14) Without appropriate transfer, a buyer is left without rights to the property; she has only contract or tort claims. A contract claim can, of course, ultimately lead to a transfer of full legal ownership to the buyer, because specific performance is routinely awarded in cases where the subject matter of the contract is real property.(fn15) In order to obtain specific performance, however, a buyer must tender her own promised performance and pay the entire purchase price.(fn16) This is the typical earnest money situation. There is usually no need to worry about whether a buyer has rights in the property under this agreement, because such rights can be acquired as described above. More importantly, a buyer will not usually receive any of the usual incidents of real property ownership under the terms of an earnest money agreement.
The installment contract presents a different problem. Because legal title, together with the incidents of ownership it represents, remains in the seller, the formalities of legal transfer have not been observed, and theoretically the buyer can have no legal interest in the property.(fn17) Nonetheless, it is common to transfer such important incidents of property ownership as the right to possession to the installment buyer under the real estate contract itself. The buyer is not, however, in a position to require formal transfer of any property rights associated with the incident of ownership because part of the buyer's own performance is still owed to the seller.(fn18)
If the parties to the contract agree to divide the incidents of ownership between the seller and the buyer over a period of time, it is incorrect to think of the seller as the "owner" of the property; some of the most important attributes of that ownership have been transferred to someone else. It is similarly inappropriate in property terms to think of the purchaser as the "owner," because the purchaser has only some of the rights associated with ownership, not the...
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