Agreement or Contract for Deed for Sale and Purchase of Real Estate a/k/a Land or Executory Contract
Contract for Deed - General - West Virginia
WEST VIRGINIA CODE
CHAPTER 36. ESTATES AND PROPERTY.
ARTICLE 1. CREATION OF ESTATES GENERALLY
36-1-1. Creation of estates; necessity of deed or will.
No estate of inheritance or freehold, or for a term of more than five years, in lands, or any other interest or term therein of any duration under which the whole or any part of the corpus of the estate may be taken, destroyed, or consumed, except for domestic use, shall be created or conveyed unless by deed or will.
36-1-2 Power of attorney to execute deed of land; necessity of writing.
No power of attorney to execute a deed of land for another person shall be valid, unless it be in writing signed by the person on whose behalf such deed is to be made.
36-1-3 Contracts for sale or lease of land; necessity of writing.
No contract for the sale of land, or the lease thereof for more than one year, shall be enforceable unless the contract or some note or memorandum thereof be in writing and signed by the party to be charged thereby, or by his agent. But the consideration need not be set forth or expressed in the writing, and it may be proved by other evidence.
36-1-4a Memorandum of trust; requirements; recordation.
(a) A memorandum of trust that satisfies both of the following requirements may be presented for recordation in the office of the clerk of the county commission of any county in which real property that is subject to the trust is located:
(1) The memorandum shall be executed by the currently acting trustee or trustees of the trust, and, if living, by the settlor or settlors, personally, or by a duly appointed attorney-in-fact or conservator of the settlor or settlors, and shall be acknowledged in the manner a deed must be acknowledged in order to be recorded.
(2) The memorandum shall contain at least the following information with respect to the trust:
(i) The existence of the trust and the date of the trust;
(ii) The names and mailing addresses of the settlor or settlors and of the currently acting trustee or trustees of the trust, the names and mailing addresses of any successor trustee or trustees, and the circumstances under which any successor trustee or trustees will assume trust powers;
(iii) The revocability or irrevocability of the trust; and
(iv) A verbatim recitation of the trust powers specified in the trust relative to the acquisition, sale, disposition, or encumbering of real property by the trustee or trustees or the conveyance or disposition of real property by the trustee or trustees and any restrictions upon those powers, or a statement that the trust powers include at least all those trust powers contained in section three, article five-a, chapter forty-four of this code as they existed at the date of the execution of the trust.
(b) A memorandum of trust may also set forth the substance or actual text of any or all of the provisions of the trust.
(c) A memorandum of trust that satisfies the provisions of this section constitutes notice only of the information contained therein.
(d) Upon the presentation of a memorandum of trust that satisfies the provisions of this section and the payment of the requisite fee, the clerk shall record the memorandum of trust with the records of deeds and list it in the grantor index under the name of the settlor or settlors and in the grantee index under the names of the then-acting trustee or trustees.
(e) Nothing herein shall be construed or deemed to require recordation of any original trust agreement or other governing instrument which establishes the trust identified in the memorandum of trust.
West Virginia Code
CHAPTER 36. ESTATES AND PROPERTY
ARTICLE 3. FORM AND EFFECT OF DEEDS AND CONTRACTS
§ 36-3-4. Distinctions between various kinds of deeds abolished.
All distinctions in legal effect between deeds of grant, deeds of bargain and sale, deeds of lease and release, and deeds of covenant to stand seized, are hereby abolished. Any instrument which shows on its face a present intent to pass the title to, or any interest, present or future, in real property, shall, if properly executed and delivered, be given effect according to its manifest intent. No instrument purporting to convey land, or any interest therein, shall fail of effect merely for lack of conformity with the language of sections five, six, seven, eight or nine of this article.
36-3-5 Form of deed.
A deed may be made in the following form, or to the same effect: "This deed made the ........ day of ........., in the year ........, between (here insert names of parties), witnesseth: That in consideration of (here state the consideration), the said ............... grants unto the said ............... all, etc. (Here describe the property, and insert covenants or any other provisions.) Witness the following signature."
36-3-5a Easement and right-of-way; description of property; exception for certain public utility facilities and mineral leases.
(a) Any deed or instrument that initially grants or reserves an easement or right-of-way shall describe the easement or right- of-way by any of the following:
(1) Metes and bounds;
(2) Specification of centerline: Provided, That any deed or instrument, executed on or after September 1, 2013, that initially grants or reserves an easement or right-of-way using the centerline method must also include the width;
(3) Station and offset; or
(4) Reference to an attached drawing or plat which may not require a survey or instrument based on the use of the global positioning system which may not require a survey.
(b) Oil and gas, gas storage and mineral leases shall not be required to describe the easement, but shall describe the land on which the easement or right-of-way will be situate by source of title or reference to a tax map and parcel, recorded deed, recorded lease, plat or survey sufficient to reasonably identify and locate the property on which the easement or right-of-way is situate: Provided, That the easement or right-of-way is not invalid because of the failure of the easement or right-of-way to meet the requirements of this subsection or subsection (a) above.
(c) This section does not apply to
36-3-6 Necessity of consideration in deed of real property.
If a deed of real property is in other respects valid, it shall not fail for want of a payment of consideration, or the recital of a consideration in the deed. No resulting or other trust in favor of the grantor in such deed shall arise from the mere fact that no consideration was paid or recited, if no trust was in fact intended. The foregoing provisions of this section shall not affect in any manner the right of any party to the deed, or any other person, to have such conveyance set aside for fraud, or because of any other circumstance which would render such conveyance invalid as to such person.
36-3-7 Effect of words of release in a deed.
Whenever, in any deed, there shall be used the words "The said grantor releases to the said grantee all his claims upon the said lands," or words of like import, such deed shall be construed as if it set forth that the grantor or releasor hath remised, released, and forever quitted claim and by these presents doth remise, release, and forever quit claim unto the grantee or releasee, his heirs and assigns, all right, title and interest whatsoever, both at law and in equity, in or to the lands and premises granted or released, or intended so to be.<br />
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36-3-8 Form of lease.<br />
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A deed of lease may be made in the following form or to the same effect: This deed, made the …… day of ……., in the year ……, between (here insert the names of the parties), witnesseth: That the said …………… demises unto the said ……………, his personal representatives and assigns, all, etc., (here describe the property), from the …… day of<br />
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……, for the term of ……, thence ensuing, the said<br />
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…………… (the lessee) paying to the said ……………<br />
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(the lessor) therefor, during the said term, the rent of (here state the rent and mode of payment, and insert covenants, conditions, or any other provisions). Witness the following signature.<br />
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36-3-9 Form of deed by sheriff or special commissioner.<br />
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The deed of a sheriff or special commissioner for real estate sold under the decree, judgment or order of a court may be made in the following form, or to the same effect:<br />
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This deed, made this …… day of ……, between A ……………<br />
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B ……………, sheriff of the county of …………… (or special commissioner, as the case may be) of the first part, and C …………… D ……………, of the second part, witnesseth: That whereas, the said sheriff (or commissioner) in pursuance of the authority vested in him by a decree (judgment, or order, as the case may be) of the circuit court of the county of ………., made on the …… day of ……, in a suit in chancery (or an action at law, or otherwise, as the case may be) therein pending, in which E …………… F …………… was plaintiff, and G …………… H …………… was defendant, did sell the real estate hereinafter mentioned and conveyed according to the terms and conditions required by said decree (judgment or order) at which sale the said C ……………<br />
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D …………… became the purchaser for the sum of ……<br />
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dollars. And whereas, the said court by a subsequent decree (or order) made in the case on the …… day of ……, confirmed the said sale and directed a deed for the said real estate to be made to the said C …………… D ……………, by the said sheriff (or commissioner). Now, therefore, this deed witnesseth: That the said A …………… B ……………, sheriff (or special commissioner) as aforesaid, doth grant unto the said<br />
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C …………… D ……………, a certain parcel of real estate situated in the county of ………., and bounded and described as follows (here insert the boundaries, description and quantity, as near as may be). Witness the following signature.<br />
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A …………… B ……………, sheriff (or special commissioner).<br />
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36-3-10 Deeds to include buildings, privileges and appurtenances.<br />
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Every deed conveying land shall, unless an exception be made therein, be construed to include all buildings, privileges, and appurtenances of every kind belonging to the lands therein embraced.<br />
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WEST VIRGINIA CASE LAW<br />
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Cancellation of a land sales contract will not be granted by the Court because of a partial failure of consideration, where there is no offer to restore the status quo and where the grounds for cancellation are otherwise insubstantial.<br />
Bailey v. Savage, 236 S.E.2d 203 (1977)<br />
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Time for compliance is generally not of the essense of a contract for the sale and purchase of land. A reasonable time is generally implied. If the parties would make time of the essence, they should so stipulate in the contract. And even when such contract does make time of the essence, it may be waived by indulgence or subsequent contract of the parties. Id.<br />
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“If, under an executory contract of sale of land, in which time has not been made an essential element, or from which such element originally embodied in it has been eliminated, substantial payments have been made, mere delay in payment of the residue for a reasonable period of time does not preclude specific performance at the instance of the vendee, under the principle of laches.” Malone v. Schaffer, 178 W.Va. 637 (1987)
