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  1. #21
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    Oct 2006
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    Default Re: Legal Description Deed and Sales Contract

    I think that Bud is wrong for making it seem like the OP holds all of the cards.

    I think that you are equally wrong in saying that the developer has the position of strength.

    Its easy to change a contract to correct errors BEFORE its signed. Its not so easy to prove that something is an error after all of the parties have signed it. Therefore I see this as more of a 50/50 situation than either of you are making it out to be.

    The OP needs to give it a little more time for the developer to get back to him/her. Then, the OP may need a consult with a real estate attorney.

  2. #22
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    Jan 2006
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    38,647

    Default Re: Legal Description Deed and Sales Contract

    Quote Quoting llworking
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    I think that Bud is wrong for making it seem like the OP holds all of the cards.
    ok

    I think that you are equally wrong in saying that the developer has the position of strength.
    um, you’ll have to point that out to me. I don’t have recall saying the seller has a position of strength. I did say I believe the seller would win if this goes to court though. I don’t see that as being in a position of strength, at least for the purposes of demanding some action from the op or especially anything additional. It’s simply saying I think the seller will prevail if this goes to court

    i would expect a court to order the seller to cover the costs to correct the issues but he too would be due nothing more than the title of the lot being corrected, at his expense.

    Its easy to change a contract to correct errors BEFORE its signed. Its not so easy to prove that something is an error after all of the parties have signed it. Therefore I see this as more of a 50/50 situation than either of you are making it out to be.
    since the op admits it is an error and presuming the seller makes the same statement, there is nothing to prove. Now, if the op wants to lie, well, that can bring in different activities. Then the op would actually have to defend the sellers claim it was an error. The facts of the situation not known here will determine if that is easy, difficult, or impossible.



    The OP needs to give it a little more time for the developer to get back to him/her. Then, the OP may need a consult with a real estate attorney.
    Of course he needs to wait. Op isn’t out anything other than he is being dunned for property taxes. I don’t know what happens when one is delinquent in his state. Until op is approached, he can sit and wait

    of course, if op allows the builder to continue building across the street, we possibly have an unjust enrichment issue. The more that is built on the lot, the greater the claim the builder has against the op. It would be wise for the op to act expeditiously. (I think that also, although unknowingly at this point, gives the seller a few face cards)

  3. #23
    Join Date
    Jan 2011
    Posts
    271

    Default Re: Legal Description Deed and Sales Contract

    At least the OP realized there is a problem now and contacted the builder. Could you imagine the mess if the OP had just tossed the property tax bill into a file with the rest of his 2019 tax paperwork since that payment usually comes out of escrow and a lot of people don't really read it thoroughly, and the mistake doesn't get found until the builder goes to sell the finished house in a few months and the title company finds the error.

  4. #24
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    Default Re: Legal Description Deed and Sales Contract

    Quote Quoting jk
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    of course, if op allows the builder to continue building across the street, we possibly have an unjust enrichment issue. The more that is built on the lot, the greater the claim the builder has against the op. It would be wise for the op to act expeditiously. (I think that also, although unknowingly at this point, gives the seller a few face cards)
    You said that the OP's hand was weak. Therefore, by implication you said that the builder's hand was strong. You have take a very strong stance on an issue that I think is much grayer than you are making it out to be.

  5. #25
    Join Date
    Nov 2013
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    6,296

    Default Re: Legal Description Deed and Sales Contract

    Quote Quoting llworking
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    I think that Bud is wrong for making it seem like the OP holds all of the cards..
    She is holding all the cards. She can dictate the terms to fix the problem. She legally owns the second lot even though there may have been a bilateral mistake in the contract.

    The sales contract was executed presumable without any defects that would render it void or voidable. It was the bases for the mortgage. It was reviewed by the buyer, the seller, the mortgage company and their title insurance company. No one caught the mistake and they went to closing. The deed was executed, signed, acknowledged, and recorded. That puts her in the chain of title for the second lot.

    According to Georgia law (statutes and case law) that deed cannot be corrected by a corrective deed. This is not some typo or minor mistake that can be corrected by a scrivener's error affidavit and a corrective deed. She will have to grant that lot back to the seller to keep the chain of title clean. That means another closing.

  6. #26
    Join Date
    Jan 2006
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    38,647

    Default Re: Legal Description Deed and Sales Contract

    Quote Quoting llworking
    View Post
    You said that the OP's hand was weak. Therefore, by implication you said that the builder's hand was strong. You have take a very strong stance on an issue that I think is much grayer than you are making it out to be.
    Never played cards? All players can have weak or strong hands simultaneously. It is an individual issue, not comparative.


    And no, if it was an error on both parties, I don’t believe my position inaccurately judges the likelihood of how it would turn out in court. Mutual error is a solid basis for seeking reformation of a contract. Op would have no legal claim to compensation and would have to foot their own legal costs. Of course the builder is liable for the costs to correct this as it is his, or people acting on behalf of him error. Op should not have to foot the bill to handle all the paperwork and anything else other than ops legal costs if op wishes to fight to retain title.


    as I stated, especially since the op is aware of the issue, if they want to argue they have a legal right to the lot, op allowing the builder to continue to build on the lot sets the op to be sued for unjust enrichment. Is the op willing to buy the improvements currently being built on the lot? CAN the op afford to buy the improvements? It would end up as a judgment and not something they can mortgage. It’s straight out of their pockets or, if they have the available credit, through a loan.

    So, let’s say the builder acquiesces to title as it stands: now the builder files suit for the costs of the building components already installed plus any associated costs (surveyors, architects, engineers, permits, etc) that were spent where the op was aware of the title issue and simply stood by and watched the builder build believing he owned the property. Yes, in that part of the issue I do believe op has a weak hand and builder has a very strong hand.

  7. #27
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    Sep 2005
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    Default Re: Legal Description Deed and Sales Contract

    The builder is constructing a home on the second lot, so it reasonably follows that the builder did not intend to transfer it. The buyer has already contacted the builder to try to clear up the mistake, so it also reasonably follows that the buyer did not intend to buy the second lot. It does not seem at all likely that the builder is going to suddenly say, "Nah, I intended to transfer it -- keep the lot and the foundation I just poured", or that the buyer is going to suddenly say, "Despite my prior communication, I knew the whole time that I was buying both properties". So as it stands it's a basic case of mutual mistake, allowing for reformation of the contract by the parties or, if necessary, by a court.

    If the lender's appraisal was based upon the value of the home and lot that the buyer intended to purchase then, as has already been suggested, the lender is not likely to require refinancing over the transfer of the second lot back to the builder. That's something to discuss with the lender. The lender may also have filed a lien against the second lot, which would have to be released in association with unwinding that portion of the transaction. The buyer can discuss these issues with the lender.

    The builder is best served by proceeding with this on a cooperative basis, and agreeing to pick up any cost associated with transferring the second lot back to himself / his company, because that's going to be a lot faster and cheaper than trying to accomplish the same thing through court -- and if everybody is in agreement, it is unnecessary to involve the courts.

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