Part performance under Statute of Frauds

Brice v. Hrdlicka, 227 Or.App. 460, --- P.3d ----, 2009 WL 997141 (Or.App. Apr 15, 2009) (NO. 04CV0422MA, A132940)

One tenant in common would accommodate the other tenant’s desire to obtain financing on the property. He would deed the property to the other tenant, the loan would be obtained and then his one-half interest would be deeded back to him. One time, the other tenant refused to deed back the property. The legal defense was the agreement was unenforceable under the Statute of Frauds because it was not in writing. 

 Oregon's Statute of Frauds requires that certain types of agreements, including those “for the sale of real property, or any interest therein,” must be in writing, unless an exception applies.The doctrine of part performance is one such exception. Luckey et ux v. Deatsman, 217 Or. 628, 633, 343 P.2d 723 (1959). Under that doctrine, a court may enforce an agreement that would otherwise violate the Statute of Frauds if three requirements are met. First, the party asserting part performance must provide preponderating evidence of an agreement that is “clear, certain and unambiguous in its terms.” Young v. Neill et al., 190 Or. 161, 166, 220 P.2d 89 (1950). Second, there must be evidence of conduct “unequivocally and exclusively referable to the contract.” Strong v. Hall, 253 Or. 61, 70, 453 P.2d 425 (1969). Finally, there must be equitable grounds for enforcing the agreement, such as facts justifying the avoidance of unjust enrichment or relief from fraud. Luckey, 217 Or. at 633, 343 P.2d 723.

 Whether a plaintiff partially performed an agreement so as to remove it from the statute of frauds is a question of fact. Howland v. Iron Fireman Mfg. Co., 188 Or. 230, 317, 322-23, 215 P.2d 380 (1950).

The Court of Appeals agreed with the trial court that part performance had been proved and ordered the tenant in common interest be returned to the plaintiff.

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