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Zelano v. Zelano

2005 WL 2334361 (N.J. Super. Ch. Div. 2005) (Unpublished)

PARTITION; SETTLEMENT AGREEMENTS—Pursuant to the New Jersey Statute of Frauds, an agreement to transfer an interest in real estate does not have to be in writing so long as the following is established by clear and convincing evidence: 1) a description of the real estate sufficient to identify it; 2) the nature of the interest to be transferred; 3) the existence of an agreement; and 4) the identity of the transferor and transferee.

A married couple and an estate owned two properties. The estate and the executors entered into a settlement agreement whereby the estate was to sell its entire interest in the properties to the executors. The married couple also agreed to sell their interest to the executors and a closing date was scheduled. The estate refused to transfer its interest in the properties to the executors, and as a result the closing was cancelled. The executors then filed a motion to enforce the settlement agreement with the estate. In support of their motion, the executors asserted that an enforceable settlement agreement had been formed with the estate, whereby the estate agreed to sell its interest. They argued that absent evidence of fraud or other compelling circumstances, the court was required to uphold the agreement. They requested that the court order the estate to convey its interest in accordance with the settlement agreement. In addition, they requested that the court appoint a receiver to list the two properties for sale. The married couple joined in the executors’ motion to enforce the agreement, asserting that they had been forced to cancel the closing because the estate had failed to abide by the settlement agreement. The estate opposed the motion, arguing that a settlement agreement had never been reached between the parties because the executors had negotiated the terms of the agreement with a lawyer that was not representing the estate at the time of the negotiations. It also contended that the agreement should not be enforced because it was never reduced to writing.

The court granted the executors’ motion to enforce the agreement. It held that a valid settlement had been reached between the parties despite the fact that the agreement was not reduced to writing. It ruled that there is no legal requirement that a settlement agreement be in writing in order to be enforceable. It further noted that an agreement to transfer an interest in real estate also does not have to be in writing to satisfy the New Jersey Statute of Frauds so long as the following is established by clear and convincing evidence: 1) a description of the real estate sufficient to identify it; 2) the nature of the interest to be transferred; 3) the existence of an agreement; and 4) the identity of the transferor and transferee. The court found that the executors had established all of the above elements and had therefore proven that an enforceable agreement had been formed between the parties. The court rejected the estate’s assertion that it had not been represented by the attorney that negotiated the agreement with the executors. It ruled that a letter signed by the attorney indicating that he was representing the estate and the attorney being shown on the court’s records as representing the estate established that the estate was represented by the attorney during the negotiations.


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