Posted By Scott Freshwaters on 4/9/2010 at 8:12 AM
I'll begin with this quote by one CZ -
"The Statute of Frauds has no exceptions."
Let's have civil discourse over this statement.
Some background: In a nutshell, the SOF says that all transfers (alienation for our friend RS) of real property (dirt) must be with a written instrument.
So, we have at least four "legal" methods of transferring ownership of the dirt via "unwritten means"
Adverse possession (AP), Estoppel - a strange duck that this Surveyor will not Saute right now.
Boundary Line Agreement (Parol Agreement), Acquiescence
Now, where in these legal methods of deciding the boundary (ies) is the SOF satisfied?
Let's just analyze the Parol Agreement in this thread, as the cites below only address this doctrine.
Is the court decision the written document?
Or, like courts in many jurisdictions have said, the "legal fiction" comes into play.
Specifically, to quote two Oregon cases -
1. "Several Oregon cases deal with the doctrine of parol boundary agreements. The Statute of Frauds PROBLEM (caps from SCF) is disposed of by using the fiction offered by most courts; viz., that the parties take title, not from the agreement, but from their deeds as interpreted by their agreement."
2. "The reason that an oral agreement that meets these requirements does not violate the statute is that it interprets, rather than alters, the property deed description and, therefore, does not effect a conveyance or transfer of real property."
So, my question is..... Given the cites offered, is CZ's opening statement true?
Please keep the discussion civil, and let's not have any super cut & paster show us the well worn verbiage from " Bock & Clark" or "Blacks"
My $0.02 worth is that the courts many years ago recognized that the SOF must remain inviolate and therefore some "fiction" had to be employed to keep the SOF sacrosanct.
Scott Scott (:
Statute of Frauds
April 9, 2010