IS THIS DOCUMENT A CONTRACT FOR SALE OF LAND

A family dispute in which Dad and his wife is trying to evict Son and his wife from their home. Son claims to be an "owner" of the property due to a writing which Son claims is a contract of sale. 

Templar v Templar, 2021 NY Slip Op 31611(U), May 14, 2021, Supreme Court, Wayne County, Docket Number: 84778, Judge: Daniel G. Barrett:

"The Plaintiffs, Kathleen and Paul Templar, have brought this action seeking to
evict the Defendants, Jeramie and Jessica Templar from 232 East DeZeng Street, Clyde,
New York. The parties are married to each other and Defendant, Jeramie Templar, is the
son of Plaintiff, Paul Templar.

Each of the Plaintiffs and Defendant, Jessica Templar, testified in this case.

Defendant Jeramie Templar, although present at the hearing, did not testify and no reason
was given for his non-participation in this hearing.

There is no dispute that the Plaintiffs are record owners of the property located at
232 DeZeng Street. The Defendants are relying upon a writing signed by all parties dated
December 1, 2016, as a land contract which prevents the Plaintiffs from evicting them.
This writing will be evaluated at a later point in this Decision.

The testimony of the Plaintiffs is consistent. Plaintiff Kathleen Templar moved to
her daughters house in Canastota in March of 2016 to help the daughter run her business.
This was a temporary move not a permanent relocation. She left various personal effects
at 232 East DeZeng Street including her mother's ashes, family antiques and other items.
She left these various articles of personal property in the first floor bedroom, parlor,
rooms upstairs and the attic. One of the rooms was locked.

In December 2016 Plaintiff Paul Templar moved to Canastota to be with his wife.
He, likewise, left various personal effects, family antiques, military documents and his
military uniform. These items were left in the same places as Kathleen Templar's
belongings-the first floor bedroom, parlor, rooms on the second floor and the attic. One
of these rooms was locked.

The Plaintiffs allowed the Defendants to move into 232 DeZeng Street when
Plaintiff, Paul Templar, temporarily moved to Canastota to be with his wife. The
Plaintiffs entertained the idea of maintaining a life use of the residence with the property
passing to the Defendants after their passing. This was simply a verbal discussion,
nothing was committed to in writing. The Plaintiffs clearly intended to return to 232
DeZeng Street to live.

The previously referenced writing dated December 1, 2016, was executed by all of
the parties and labeled as Exhibit 10 and duly admitted into evidence.

The house needed a new furnace. A grant program was available but it was not
available unless the applicant owned the premises. According to the Plaintiffs that is the
reason Exhibit 10 came into existence. The Plaintiffs testified they did not prepare
Exhibit 10. Defendant, Jessica Templar, testified the Plaintiffs had already executed the
writing before it was presented to her. Plaintiffs testified they signed Exhibit 1 O so that
the Defendant would qualify for the grant to replace the furnace. A new furnace, in fact,
was installed.

While residing in Canastota, at times unsolicited, Defendant Jeramie Termplar
would transport the Plaintiffs' personal property to Canastota on a regular basis. The
Plaintiffs did not request that he do that nor did they give him permission to empty their
house. Defendant, Jessica Templar, refuted this testimony. She testified that the
transport of the personal property was done at the request of the Plaintiffs.
While the Plaintiffs were residing in Canastota, Defendant, Jeramie Templar told
the Plaintiff, Paul Templar, he needed the key to the locked door so that the room could
be winterized. The key was not returned and the lock was replaced by the Defendants.
No key to open this door was ever presented to the Plaintiffs.

In June 2019 the Plaintiffs intended to move back into 232 DeZeng Street. They
were forbidden to do so by the Defendants. The Plaintiffs were barred from moving their
personal belongings back into the house and they have had to seek a residence elsewhere.
According to the Verified Complaint, the Plaintiffs served a 30 Day Notice to
Vacate on the Defendants on July 10, 2019.

The Defendants, per the testimony of Defendant Jessica Templar, asserted that
Exhibit 10 is a land contract. Exhibit 10 was not prepared to qualify for a new furnace
grant. It was her understanding she was purchasing an interest in land.

ANALYSIS
This case pivots on the legal significance of Exhibit 10. Exhibit 10 is very brief
and is reproduced here in its entirety:

Kathleen and Paul Templar have entered into a
rent to own agreement with Jessica and Jeramie
Templar. Jessica and Jeramie are living in the
house at 232 East DeZeng Street at this time, as
of December 1, 2016. Kathleen and Paul Templar
reside at 2990 State Route 31, Canastota.

The phrase in the first sentence "have entered into a rent to own agreement" gives
one the impression that there is a separate agreement that has already been executed. But
this is not the case. The next two sentences tell us where the Defendants and Plaintiffs
resided on December 1, 2016.

Since we are dealing with an interest in real property the Statute of Frauds has to
be satisfied. "The essential terms of a real estate contract typically include the purchase
price, the time and terms of payment, the required financing, the closing date, the quality
of title to be conveyed, the risk of loss during the sale period, and adjustments for taxes
and utilities ... [W]here a contract's material terms are not reasonable definite, the contract
is unenforceable" (Matter of Licata, 76 A.D. 3d 1076, 1077 [2 "d Dep't 2010] 443;
Jefferson Holdings, LLC v Sosa, 174 A.D. 3d 486, 487 [2"d Dep't 2019]).

It is argued that parol evidence will provide the missing links to save this contract.

In Pfiel v Cappiello, 29 A.D. 3d 1187, [3 rd Dep't 2006] quoting the following portion of
the decision in the case of Wacks v King shows this is not accurate:

GOL 5-703(2) provides, in relevant part, that a contract for
the sale of any real property, or interest therein, is void
unless the contract or some note or memorandum thereof,
expressing the consideration, is in writing, subscribed by the
party to be charged. To that end, the underlying instrument
must designate all parties, identify and describe the subject
matter and state all essential terms of a complete agreement.
Where as here, the subject matter of the agreement is real
property, the writing must describe the property involved
with such definiteness and exactness as will permit it to
be identified with reasonable certainty. Finally, the
determination of whether an instrument satisfies the
Statute of Frauds is based solely on the language of the
document itself, without consideration of parol evidence.

Also, to satisfy the Statute of Frauds, a memorandum subscribed by the party to be
charged, must designate the parties, identify and describe the subject matter, and state all
of the essential terms of a complete agreement. A writing is not a sufficient
memorandum unless the full intention of the parties can be ascertained from it alone,
without recourse to parol evidence, Dahan v Weiss, 120 A.D. 3d 540 [2"d Dep't 2014].
"Parol evidence, that is evidence outside the four corners of the document, is
admissible if a court finds an ambiguity in the contract. As a general rule, extrinsic
evidence is inadmissible to alter or add a provision to a written agreement." §3: 19 Statute
of Frauds, generally. 11 PT I West's McKinley's Forms Real Property.

It is also argued that this Court should look at the text messages between the
parties. This is not permissible because of parol evidence and it is not permissible as a
writing that would satisfy the Statute of Frauds, (see Vista Developers Corp. v VFP
Realty. LLC, 17 Misc. 3d 914, 847 N.Y.S. 2d 416).

All the parties who testified, Plaintiffs and Defendant Jessica Templar, testified
they did not prepare Exhibit 10. Defendant Jeramie Templar did not testify. The Court is
permitted to draw a negative inference as a result of his not testifying and find that he
prepared Exhibit I 0. In that event the contract can be interpreted against the interests of
the Defendants.

Based on the foregoing the Court finds that there is no contract for the sale of the
real property and the Plaintiffs are entitled to a warrant of eviction. Counsel for Plaintiffs
to prepare a warrant of eviction which may be served on or after June 25, 2021."