Original (very limited) purchase agreement (basic provision was price) provided seller would pay for land survey.
Upon completion of the survey, seller discovered the property line was off by 1 acre and 1/3 of the home was sitting on neighbor's property.
Seller changed subsequent detailed sales agreement, including the Property Condition Disclosure Statement and Deed of Trust to say that no survey was done but if a problem ever arose, seller would be responsible.
Buyer reasonably relied on seller's assertion that no survey had been done, that everything was fine, and purchased the property.
I.C. § 55-2516 provides that good faith was required in making disclosures (good faith means honesty in fact, in the conduct of the transaction); and
I.C. § 55-2514, does not relieve seller of obligation to disclose other information; and
I.C. §§ 55-2506 - 55-2507 does not limit and was not to be construed as limiting any obligation to disclose an item of information that is created by any other section of the Idaho Code or the common law of the state of Idaho.
A few years later this purchase agreement was amended to exclude all language as it pertained to the survey. Also, the amendment included the customary "you cannot sue me" provision.
Last year, buyer discovered what seller had done, i.e., intentionally misrepresented and failed to disclose the fact that a survey had, in fact, been completed and the reason the seller excluded the reference to the survey in the amended agreement was in an attempt to have clean hands.
I.C. § 55-901 speaks to fraudulent conveyances of land provides, "Every instrument, other than a will, affecting an estate in real property, including every charge upon real property, or upon its rents or profits, made with intent to defraud prior or subsequent purchasers thereof, or encumbrances thereon, is void as against every purchaser or encumbrancer, for value, of the same property, or the rents or profits thereof."
Also, the Warranty Deed provides, "And the said Grantors, for themselves, their heirs, executors, and administrators, do covenant, grant, bargain, and agree to and with the said Grantees, their heirs and assigns, that at the time of the ensealing and delivery of these presents they were well seized of the premises above conveyed as of good, sure, perfect, absolute, and indefeasible estate of inheritance, in fee simple, and have good rights, full power and lawful authority to grant, bargain, sell, and convey the same in the manner and form aforesaid, and that the same are free and clear from all and former grants, bargains, liens, taxes, assessments, and encumbrances of whatever kind or nature whatsoever,…"
Seller intentionally, willfully, and with malice aforethought committed the wrongful act of fraud by knowingly selling to buyer real property seller had no rights, full power, or lawful authority to sell.
Question 1: Assuming the court declares the original sales agreement void due to fraud; how might that effect the second agreement which removed all references to the survey?
In other words, if the original agreement is void and no longer exists, and the second agreement was made based on a "now nonexistent agreement", how can the terms of the second agreement be upheld?
Question 2: Since it is obvious that seller intentionally deleted the survey language from the second agreement and intentionally added the "you can't sue me" language, what are the odds the court will throw the second agreement out?
Upon completion of the survey, seller discovered the property line was off by 1 acre and 1/3 of the home was sitting on neighbor's property.
Seller changed subsequent detailed sales agreement, including the Property Condition Disclosure Statement and Deed of Trust to say that no survey was done but if a problem ever arose, seller would be responsible.
Buyer reasonably relied on seller's assertion that no survey had been done, that everything was fine, and purchased the property.
I.C. § 55-2516 provides that good faith was required in making disclosures (good faith means honesty in fact, in the conduct of the transaction); and
I.C. § 55-2514, does not relieve seller of obligation to disclose other information; and
I.C. §§ 55-2506 - 55-2507 does not limit and was not to be construed as limiting any obligation to disclose an item of information that is created by any other section of the Idaho Code or the common law of the state of Idaho.
A few years later this purchase agreement was amended to exclude all language as it pertained to the survey. Also, the amendment included the customary "you cannot sue me" provision.
Last year, buyer discovered what seller had done, i.e., intentionally misrepresented and failed to disclose the fact that a survey had, in fact, been completed and the reason the seller excluded the reference to the survey in the amended agreement was in an attempt to have clean hands.
I.C. § 55-901 speaks to fraudulent conveyances of land provides, "Every instrument, other than a will, affecting an estate in real property, including every charge upon real property, or upon its rents or profits, made with intent to defraud prior or subsequent purchasers thereof, or encumbrances thereon, is void as against every purchaser or encumbrancer, for value, of the same property, or the rents or profits thereof."
Also, the Warranty Deed provides, "And the said Grantors, for themselves, their heirs, executors, and administrators, do covenant, grant, bargain, and agree to and with the said Grantees, their heirs and assigns, that at the time of the ensealing and delivery of these presents they were well seized of the premises above conveyed as of good, sure, perfect, absolute, and indefeasible estate of inheritance, in fee simple, and have good rights, full power and lawful authority to grant, bargain, sell, and convey the same in the manner and form aforesaid, and that the same are free and clear from all and former grants, bargains, liens, taxes, assessments, and encumbrances of whatever kind or nature whatsoever,…"
Seller intentionally, willfully, and with malice aforethought committed the wrongful act of fraud by knowingly selling to buyer real property seller had no rights, full power, or lawful authority to sell.
Question 1: Assuming the court declares the original sales agreement void due to fraud; how might that effect the second agreement which removed all references to the survey?
In other words, if the original agreement is void and no longer exists, and the second agreement was made based on a "now nonexistent agreement", how can the terms of the second agreement be upheld?
Question 2: Since it is obvious that seller intentionally deleted the survey language from the second agreement and intentionally added the "you can't sue me" language, what are the odds the court will throw the second agreement out?
