REAL ESTATE CONTRACT LITIGATION involves not only the general law of contract, but also particular statutory and common law rules. Whether the contract is a purchase and sale agreement, and installment land contract, an option to purchase, a lease, or some other type of instrument, it is subject to the same principles of law that govern contracts in general. Consequently, the general law of contracts should be considered in any dispute concerning a real estate agreement and could have a decisive impact on the rights and obligations of the parties. For example, requirements for contract formation and enforceability, rules applicable to contract interpretation, and other general contract issues are important in litigation involving real estate agreements. Specific areas of contract law, such as remedies, are of particular concern to the real estate litigator and have specific application in real estate contract disputes.
Commonly litigated issues in real estate contract disputes include applicability of the statute of frauds, acts constituting breach, questions concerning title to real property, and the availability of particular remedies.
REQUIREMENT FOR CONTRACT FORMATION
The following elements are essential to the formation of a contract and, if not present, will affect its enforceability: (1) the parties to the contract must be capable of contracting; (2) the parties must consent to the agreement; (3) the contract must have a valid object; and (4) the contract must be supported by sufficient consideration.
Another essential element to any contract is consent of the parties, which must be free, mutual, and communicated by each party to the other. There are circumstances vitiating consent. For example, consent induced by duress, menace, fraud, undue influence , or mistake may be rescinded, even when it appears to be freely given. Consent is deemed to have been obtained through one of these causes only when it would not have been given but for the duress, fraud, or other circumstance.
To be sure, forming a contract is one thing, and carrying it out to its final conclusion is quite another. One is well advised to seek the advice and counsel an attorney at all stages of the contract formation to help ensure that the transaction concludes smoothly.