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Old 10-03-2012, 12:37 PM   #1 (permalink)
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Question 21 not 12 acres found during survey for NC land sale

I have a contract to sell 12.38 acres in NC for $59,900 closing Oct. 11th. The new survey I ordered this week shows I have 21 acres instead. Our (seller and buyer sharing both) closing attorney and realtor say I have to sell the 21 acres for the same $ 59,900 because my realtor listed the acreage too vague...not writing 12.38 acres or "per surveyed acreage."

The contract references a deed book which says 12.38 acres, as well as the tax office. Only the mapping office shows 21 acres.

I'm thinking the realtor is negligent for not protecting me better in the contract since I questioned the exact acreage.

The buyer bought this property after a bidding contest with another buyer, both from out of state.

The buyer rejected my offers to renegotiate - surveying 12.38 acres of his choice; his cancelling the contract & keeping the earnest $; or paying for the additional ac.

Do I have to sell all 21 acres for same price or how can I back out without the possibility of being sued ?
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Old 10-03-2012, 01:18 PM   #2 (permalink)
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Well there are a lot of things to consider first there is something known as a fiduciary duty and it is very important to know whether this attorney owes a fiduciary duty to you or the buyer. If this attorney owes it to the buyer he will say and do what is in the advantage of the buyer so it is important to get your own attorney to look out for your interest.

In regards to the specific question this can be taken into a court of equity. Here is an article explaining it in more detail http://www.legalmatch.com/law-librar...-remedies.html . Equity occurs when something is not fair and it is very subjective to the judge. This kind of situation happens quite often with large properties and since you are selling nearly twice as much land as you thought you probably have a good chance at the very least reforming this contract to get more money.

The actual term used in this type of scenario is unilateral mistake here is an article explaining that. http://www.legalmatch.com/law-librar...-contract.html this appears to be a clear cut case of that and a court will likely use the equitable remedy of rescission or reformation to cure the mistake.

The broker may be negligent, but it is hard to say. I think the mostly likely outcome will be that a court would want this sale to go through under specific performance http://www.legalmatch.com/law-librar...e-lawyers.html . However, they will reform the 59,000 price term to the fair market value of 21 acres in that location.

I would definitely contact an attorney in your area because it sounds like you will be losing 8 acres of land which appears to be approximately 40,000 in this area. You can use your state's bar association to find a lawyer, or a site legalmatch can help you find one as well. Real estate transactions are one of the more complicated areas of the law and there are several ways to set aside a sale or get more money particularly in a situation where the boundaries were so off.

Last edited by rgriff; 11-14-2014 at 05:47 PM.
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Old 10-03-2012, 05:01 PM   #3 (permalink)
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Thank you rgriff for your timely response. I'm confused as to why my attorney has not mentioned any of these remedies.

I agree that I need a separate attorney for closing.

I am grateful for the links to view similar outcomes. I also feel my realtor had fudiciary duty to me since I have emails questioning the exact acreage to him.

I also thought contracts were only valid when there was a "meeting of the minds" which everyone agreed the sale was for 12.38 acres.

To expect double the acreage due to a vague contract written by a careless realtor seems unfair, negligent and almost fraudulent.

Worse, this realtor has never once admitted his error or an apology for costing me $45,000.

All other comments are welcome.
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Old 10-03-2012, 05:50 PM   #4 (permalink)
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No problem happy to be of help, but remember I am just an anonymous internet poster so take all my advice with a grain of salt.

1) Meeting of the minds is not necessary for contracts I think it used to be back in the day, but now that only applies to criminal conspiracy. The reasoning being contracts are often adversarial and one person is trying to gain an advantage so the meeting of the minds is not required.

2) I just found this from my bar notes this was the hypo they gave us and it applies exactly to your situation.

B enters into a contract to purchase a farm. The contract recites that the farm is 100 acres. When B has a survey done, B learns that the farm is actually 98 acres what is B’s remedy? Answer is specific performance with a Pro-Rate reduction in Price. So he will get it that is pretty close and they will give a PRO-RATA reduction for 2 acres so take 2% off the contract price.

That is probably the most realistic outcome, but you would get a pro-rata increase.

3) The other possibility I can think of is this could be considered a mutual mistake which could rescind the contract. Mutual mistake is kind of weird the example I got in law school was a guy sold a cow he thought was barren and so did the other party. However, it got pregnant they both mutually believed the cow was barren and obviously the guy with the Cow had now gotten a great deal, but the seller was screwed. However, it was a mutual mistake they both believed the cow was barren and the contract was rescinded. In this case maybe everyone thought it was 12 acres until it turned out to be 21. This is a mutual mistake and could result in contract rescission. http://www.legalmatch.com/law-librar...l-mistake.html

If it was a unilateral mistake and the other side knew about it the contract could also be rescinded. Here is an explanation of rescission which you might try to obtain http://www.legalmatch.com/law-librar...n-lawyers.html

4) As for the realtor it gets really messy I don't know the specifics, but the realtor could have been the buyer's agent I really don't know. You may have a claim for breach of fiduciary duty and negligence against the broker, but they have disclosed the fiduciary duty in some form document and relied on what you believed the property to be. That could be the counter.

It sounds like there is a lot going on here and I would talk to a licensed NC attorney in your area. I am only an anonymous internet poster and can't really do much more than present some theories to pursue. Any lawyer knows all the stuff I am saying and will know how it applies specifically in North Carolina. Good luck with all this sounds like an unfortunate situation.

Last edited by rgriff; 10-03-2012 at 05:59 PM.
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Old 10-11-2012, 06:48 PM   #5 (permalink)
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rgriff's point about fiduciary duty is very important to know. Often times people speak to an attorney involved in a transaction and assume that attorney has their best interest in hand. The reality is unless you signed something agreeing to dual representation or hired the lawyer yourself that the attorney does not represent you.

A common example where this happens is in the corporate world. The attorney for the corporation represents the corporation not any individual in the company so if a settlement comes along where they fire you and save the company 5,000,000 dollars they will fire you most likely and that will be what they need to do since their fiduciary duty is to the corporation.

I don't know all the specifics of the closing attorney here, but it sounds like he represents the buyer and he is influencing you to sell to benefit his client the buyer because he will be paying for 12 acres and getting 21 great deal for his client not for you, but your not his client so he doesn't care.

It is possible for specific performance to be ordered in real estate contracts since they are unique. Here is an article explaining it http://www.legalmatch.com/law-librar...e-lawyers.html

However, specific performance is what is known as an equitable remedy and in equity the court does what is fair and does not follow the letter of the law. No way to know what a judge will think is fair, but common sense would seem to lean in favor of selling 21 acres for the price of 12 is not fair, but as rgriff suggests speak to an attorney.
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Old 11-14-2014, 04:52 PM   #6 (permalink)
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Breach of Contract

Here's a link you may find helpful: http://www.legalmatch.com/law-librar...-remedies.html
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cancel contract, dual representation, realtor negligence, survey differences

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