Opinion
No. CV 106003675 S
July 30, 2010
MEMORANDUM OF DECISION MOTION TO DISCHARGE NOTICE OF LIS PENDENS
FACTUAL BACKGROUND AND PROCEDURE
On January 13, 2010, Michael and Elizabeth Janis ("Plaintiffs") entered into a Purchase Agreement with Linus G. Cooke ("Defendant") to purchase property at 37 Easton Road, Westport, Connecticut (hereinafter "the premises"). The purchase agreement contains a number of terms for the sale of the property. The agreement contained a purchase price and time period for purposes of the closing and was signed by all parties. Soon after the signing of the purchase agreement, the defendant seller informed the plaintiffs that he would not convey the property to them nor would he accept performance of the covenants in the Purchase Agreement.
The plaintiffs filed a Notice of Lis Pendens on the Westport Land Records at volume 3057 at page 298.
On February 24, 2010, the defendants filed a motion to discharge the Notice of Lis Pendens filed on the land records by the plaintiff for property at 37 Easton Road, Westport, Connecticut. The plaintiff submitted a memorandum in opposition to the motion dated March 4, 2010. The parties appeared before the court to argue the motion at short calendar on April 4, 2010. Thereafter, the defendant submitted a memorandum in support of the motion dated April 6, 2010 and the plaintiff submitted a reply supplemental brief on April 14, 2010.
DISCUSSION
The Connecticut statute permitting the filing of a lis pendens upon the land records provides: (a) In any action in a court of this state or in a court of the United States (1) the plaintiff or his attorney, at the time the action is commenced or afterwards . . . if the action is intended to affect real property, may cause to be recorded in the office of the town clerk of each town in which the property is situated, a notice of lis pendens, . . ." General Statute § 52-325. In accordance with this statute the plaintiff filed a lis pendens on the land records for the premises that were the subject of the Purchase Agreement. The defendant, who was the seller of the property, pursuant to General Statute § 52-325a(c), has argued that the plaintiff cannot succeed and lacks the necessary probable cause to allow the lis pendens to remain on the land records. In particular, the defendant argues that the Purchase Agreement submitted as Exhibit 1 does not satisfy the statute of frauds because the mortgage contingency fails to set for the statutory criteria. The plaintiffs counter in their argument that the agreement does satisfy the statute of frauds and additionally there is no issue as to the mortgage contingency language because it has been waived.
Once a motion to discharge a lis pendens has been filed the burden of proof as to the enforceability is on the plaintiff to demonstrate that there is probable cause to sustain the validity of the claim. Corsino v. Telesca, 32 Conn.App. 627, 631, 630 A.2d 154 (1993). The court in Cadle Co. v. Gabel, 69 Conn.App. 279, 286-87, 794 A.2d 1029 (2002) cited the Corsino court in defining the parameters of a probable cause standard. In particular, the court explained the probable cause standard stating: ". . . the plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim . . . The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances in entertaining it . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false . . ." (Citations omitted; internal quotation marks omitted).
The defendant argues that the purchase agreement contains a mortgage contingency clause which is controlled by General Statute § 49-5b. This statute provides that: "any mortgage contingency clause included in a bond for deed or a written agreement for sale of real estate which conditions the purchaser's performance on his obtaining a mortgage from a third party shall satisfy the provisions of section 52-550 if such mortgage contingency clause contains at least the following: (1) the principal amount in dollars of the loan the purchaser must obtain to fulfill such contingency; (2) the limit of the time period within which a commitment for such loan must be obtained, and (3) the term of the mortgage expressed in years. The Purchase Agreement that was entered into by the parties in this case provides in Section II. G. "Written mortgage commitment on or before: 30-60 business days from accepted offer." None of the parties disagree that this was not included within the purchase agreement. Additionally, none of the parties disagree that two of the criteria, that is, the amount in dollars of the loan and the term of the mortgage expressed in years, are not present in the agreement. Instead, the plaintiffs argue that these criteria are waived because they are now able and willing to purchase the premises. The court in Booth v. Flanagan, 23 Conn.App. 579, 583 A.2d 148 (1990) addressed the issue of the mortgage contingency requirements. In Booth the court rejected an argument that the buyers could waive the protection afforded by the statute and thus avoid a statute of frauds argument. The plaintiffs' argument that after the fact they have a mortgage and are willing and able to purchase the property does not override the statute of frauds legal requirements to create an enforceable contract. Booth is clear that there is no waiver available to one party or the other. The plaintiffs have not provided any case law that would eliminate the necessity for inclusion of the three elements required to satisfy § 49-5b and thus the statute of frauds.
Without the three elements required by § 49-5b the Purchase Agreement does not satisfy the statute of frauds and thus the agreement is unenforceable. Therefore, the plaintiff cannot satisfy the criteria of probable cause because in accordance with the law, the plaintiff cannot and has not demonstrated a bona fide belief under the law that there is an enforceable agreement.
CONCLUSION
The plaintiffs cannot prevail on their claim for enforcement of the purchase agreement because the agreement fails to set forth the necessary elements for the mortgage contingency clause and therefore precludes a finding of probable cause to sustain the lis pendens. The motion to discharge is granted.