Issue: Under North Dakota law, will part performance enable the enforcement of a real estate option contract that does not otherwise meet the requirements of the statute of frauds?
| Area of Law: | Business Organizations & Contracts, Real Estate Law |
| Keywords: | Real estate option contract; Requirements of the statute of frauds; Validity |
| Jurisdiction: | North Dakota |
| Cited Cases: | 459 N.W.2d 548; 544 N.W.2d 127; 209 F. 291; 116 N.W.2d 611 |
| Cited Statutes: | N.D. Cent. Code § 9-06-04(4), subd. 3; N.D. Cent. Code § 47-10-01; |
| Date: | 07/01/2001 |
The statute of frauds provides that an agreement for the sale of real property is invalid unless the agreement is in writing or in a memorandum and signed by the party to be charged. N.D. Cent. Code § 9-06-04(4), subd. 3 (Supp. 1999). Another North Dakota statute provides:
An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred by operation of law or by an instrument in writing, subscribed by the party disposing of the same or by his agent thereunto authorized by writing. This does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof.
N.D. Cent. Code § 47-10-01 (1999).
A real estate sales agreement cannot be enforced in equity or at law if from the language of the writing itself that any of the terms, no matter how unimportant, are left open for further negotiation. See Thomas J. Baird Inv. Co. v. Harns, 209 F. 291, 295 (8th Cir. 1913) (North Dakota case, applying pre-Erie Railroad Co. v. Tompkins 304 US 64 (1938) “federal common law”). Similarly, a “memorandum” of an agreement cannot be enforced unless it includes all material terms and conditions of the contract of sale, including the price. Heinzeroth v. Bentz, 116 N.W.2d 611 (N.D. 1962).
Part performance of an oral contract subject to the statute of frauds […]