Statute of frauds as to sale of land, real property, may not always nix claim of ownership in the absence of a deed

   
Conveyance of land normally requires a proper written instrument (deed), but there are exceptions. Moreover, the statute of frauds is an affirmative defense subject to waiver.
    
TEXAS STATUTE OF FRAUDS AS TO REAL ESTATE TRANSACTIONS AND
EXCEPTIONS TO ITS STRICT APPLICATION
  
Under Texas law, oral contracts to convey land are not void, but unenforceable if the party against whom enforcement is sought raises the statute of frauds as a defense. Joiner v. Elrod, 716 S.W.2d 606, 608-09 (Tex. App.—Corpus Christi 1986, no writ).
   
To relieve a parol sale of land from the operation of the statute of frauds, three things are necessary: (1) payment of the consideration, whether it be in money or services; (2) possession by the vendee; and (3) the making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced. Hooks v. Bridgewater, 111 Tex. 122, 126-27, 229 S.W.2d 1114, 1116-117 (1921).
  
This is also called the doctrine of partial performance. See Boyert v. Tauber, 834 S.W.2d 60, 63 (Tex. 1992) (“Under the doctrine of partial performance as applied to the statute of frauds, an oral contract for the purchase of real property is enforceable if the purchaser: (1) pays the consideration; (2) takes possession of the property; and (3) makes permanent and valuable improvements on the property with the consent of the seller, or, without such improvements, other facts are shown that would make the transaction a fraud on the purchaser if the oral contract was not enforced.”).

SOURCE: CORPUS CHRISTI COURT OF APPEALS - 13-10-00490-CV – 12/1/11 


In this case, the trial court found (and appellant has not challenged) that: (1) appellees paid more than 90% of the total consideration to purchase the property from a third party and to obtain a free and clear title to the property by repaying the purchase money note, while decedent paid less than 10%; (2) appellees have had possession and have resided on the property since 1993; (3) appellees made substantial permanent improvements on the property with decedent’s consent; and (4) under the circumstances presented, the transaction would be a fraud upon appellees if it were not enforced. The foregoing provides a sufficient basis for the trial court to have concluded that the statute of frauds did not apply based on the doctrine of partial performance. Accordingly, appellant cannot establish the premise of her first issue (i.e., the applicability of the statute of frauds), and the issue is therefore overruled.
  
SOURCE: CORPUS CHRISTI COURT OF APPEALS - 13-10-00490-CV – 12/1/11