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Is the Statute of Frauds Still Absolute?

BY Lawrence A. Kobrin
August 31, 2006

If Cervantes were to say today, 'An honest man's word is as good as his bond' (Don Quixote, Book IV, Ch. 34), both knowledgeable real estate professionals and their counsel would probably respond, 'except for real property transactions.' While in many areas of the law, unwritten agreements are more readily enforced, it remains accepted as axiomatic that under the principles of the statute of frauds, only a 'writing' will create obligations in connection with real property interests.

Recent Decision

A recent Appellate Division decision went out of its way to emphasize the rule. In Yenom Corp., v 155 Wooster Street, Inc., (NYLJ, July 20, 2006 p. 22, col. 1), the court went out of its way to reinforce the continued vigor of the statute of frauds. The per curiam decision arose in a somewhat unusual way. It was delivered on the Court's own motion (nostra sponte) as a post-appeal proceeding focused on whether sanctions should be imposed on plaintiff and its counsel for pursuing an appeal relating to exceptions to the statute of frauds. The court imposed sanctions against plaintiff and its counsel for having pursued an effort to enforce an alleged contract for the sale of stock of a real estate owning corporation and the simultaneous creation of a net lease. Plaintiff claimed an exception from the normally applicable statute of fraud rules based on alleged part performance by its efforts to effect zoning changes. The court found the claim so 'frivolous and wholly without merit' that sanctions were imposed.

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