Agreement or Contract for Deed for Sale and Purchase of Real Estate a/k/a Land or Executory Contract
Idaho State Statutes
TITLE 55 PROPERTY IN GENERAL
CHAPTER 25 PROPERTY CONDITION DISCLOSURE ACT
55-2504. Property condition disclosure required.
Any person who intends to transfer any residential real property, including nonowner occupied rental property, on or after July 1, 1994, by any of the methods as set forth herein shall complete all applicable items in a property disclosure form prescribed under section 55-2508, Idaho Code. Except as provided in section 55-2505, Idaho Code, this chapter applies to any transfer by sale, exchange, installment sale contract, a lease with an option to purchase, any other option to purchase, or ground lease coupled with improvements, of real property improved with or consisting of not less than one (1) nor more than four (4) dwelling units.
History:
[55-2504, added 1994, ch. 366, sec. 1, p. 1173; am. 1997, ch. 229, sec. 2, p. 668.]
TITLE 55 PROPERTY IN GENERAL
CHAPTER 25 PROPERTY CONDITION DISCLOSURE ACT
55-2505. Exemptions.
The provisions of this chapter do not apply to any transfer of residential real property that is any of the following:
(1) A transfer pursuant to court order including, but not limited to, a transfer ordered by a probate court during the administration of a decedent's estate, a transfer pursuant to a writ of execution, a transfer by a trustee in bankruptcy, a transfer as a result of the exercise of the power of eminent domain, and a transfer that results from a decree for specific performance of a contract or other agreement between persons;
(2) A transfer to a mortgagee by a mortgagor by deed in lieu of foreclosure or in satisfaction of the mortgage debt;
(3) A transfer to a beneficiary of a deed of trust by a trustor in default;
(4) A transfer by a foreclosure sale that follows a default in the satisfaction of an obligation secured by a mortgage;
(5) A transfer by a sale under a power of sale following a default in the satisfaction of an obligation that is secured by a deed of trust or another instrument containing a power of sale occurring within one (1) year of foreclosure on the default;
(6) A transfer by a mortgagee, or a beneficiary under a deed of trust, who has acquired the residential real property at a sale conducted pursuant to a power of sale under a mortgage or a deed of trust or who has acquired the residential real property by a deed in lieu of foreclosure;
(7) A transfer by a fiduciary in the course of the administration of a decedent's estate, a guardianship, a conservatorship, or a trust;
(8) A transfer from one (1) co-owner to one (1) or more other co-owners;
(9) A transfer made to the transferor's spouse or to one (1) or more persons in the lineal line of consanguinity of one (1) or more of the transferors;
(10) A transfer between spouses or former spouses as a result of a decree of divorce, dissolution of marriage, annulment, or legal separation or as a result of a property settlement agreement incidental to a decree of divorce, dissolution of marriage, annulment, or legal separation;
(11) A transfer to or from the state, a political subdivision of the state, or another governmental entity;
(12) A transfer that involved newly constructed residential real property that previously has not been inhabited, except that disclosure of annexation and city service status shall be declared by the sellers of such newly constructed residential real property in accordance with the provisions of section 55-2508, Idaho Code;
(13) A transfer to a transferee who has occupied the property as a personal residence for one (1) or more years immediately prior to the transfer;
(14) A transfer from a transferor who both has not occupied the property as a personal residence within one (1) year immediately prior to the transfer and has acquired the property through inheritance or devise;
(15) A transfer by a relocation company to a transferee within one (1) year from the date that the previous owner occupied the property;
(16) A transfer from a decedent's estate.
History:
[55-2505, added 1994, ch. 366, sec. 1, p. 1174; am. 1997, ch. 229, sec. 3, p. 669; am. 2002, ch. 333, sec. 4, p. 944.]
TITLE 55 PROPERTY IN GENERAL
CHAPTER 25 PROPERTY CONDITION DISCLOSURE ACT
55-2508. Disclosure form.
The disclosures required by the provisions of this article pertaining to the property proposed to be transferred are set forth in and shall be made on a copy of the following disclosure form or an alternative form as provided in section 55-2506, Idaho Code:
2. Does the property, if not within city limits, receive any city services, thus making it legally subject to annexation by the city? .... Yes .... No
3. Does the property have a written consent to annex recorded in the county recorder's office, thus making it legally subject to annexation by the city? .... Yes .... No
4. All appliances and service systems included in the sale, (such as refrigerator/freezer, range/oven, dishwasher, disposal, hood/fan, central vacuum, microwave oven, trash compactor, smoke detectors, tv antenna/dish, fireplace/wood stove, water heater, garage door opener, pool/hot tub, etc.) are functioning properly except: (please list and explain)
.
.
5. Specify problems with the following:
Basement water
Foundation
Roof condition and age
Well (type) ...................... problem
Septic system (type) ............. problem
Plumbing
Drainage
Electrical
Heating
6. Describe any conditions that may affect your ability to clear title (such as encroachments, easements, zoning violations, lot line disputes, etc.):.
7. Are you aware of any hazardous materials or pest infestations on the property?
8. Have any substantial additions or alterations been made without a building permit?
9. Any other problems, including legal, physical or other not listed above that you know concerning the property:
The Seller certifies that the information herein is true and correct to the best of Seller's knowledge as of the date signed by the Seller. The Seller is familiar with the residential real property and each act performed in making a disclosure of an item of information is made and performed in good faith.
I/we acknowledge receipt of a copy of this statement.
Seller: Buyer:
........................ .........................
Date: .................. Date: ...................
........................ .........................
Date: .................. Date: ...................
History:
[55-2508, added 1994, ch. 366, sec. 1, p. 1175; am. 2002, ch. 333, sec. 5, p. 945.]
TITLE 55 PROPERTY IN GENERAL
CHAPTER 25 PROPERTY CONDITION DISCLOSURE ACT
55-2509. Delivery of disclosure form and acceptance.
Every transferor shall deliver, in accordance with section 55-2510, Idaho Code, a signed and dated copy of the completed disclosure form to each prospective transferee or his agent within ten (10) days of transferor's acceptance of transferee's offer. Every prospective transferee of residential real property who receives a signed and dated copy of a completed property disclosure form as prescribed under section 55-2508, Idaho Code, shall acknowledge receipt of the form by doing both of the following:
(1) Signing and dating a copy of the form;
(2) Delivering a signed and dated copy of the form to the transferor or his agent or subagent.
History:
[55-2509, added 1994, ch. 366, sec. 1, p. 1176.]
TITLE 55 PROPERTY IN GENERAL
CHAPTER 25 PROPERTY CONDITION DISCLOSURE ACT
55-2510. Delivery requirements.
The transferor's delivery under section 55-2509, Idaho Code, of a property disclosure form as described under section 55-2508, Idaho Code, and the prospective transferee's delivery under section 55-2509, Idaho Code, of an acknowledgement of his receipt of that form shall be made by personal delivery to the other party or his agent or subagent by ordinary mail or certified mail, return receipt requested or by facsimile transmission. For the purposes of the delivery requirements of this section, the delivery of a property disclosure form to a prospective cotransferee of residential real property or his or her agent shall be deemed considered delivered to other prospective transferees unless otherwise provided by contract.
History:
[55-2510, added 1994, ch. 366, sec. 1, p. 1177.]
TITLE 55 PROPERTY IN GENERAL
CHAPTER 25 PROPERTY CONDITION DISCLOSURE ACT
55-2511. Errors, inaccuracies or omissions Liability of transferor Delivery of information by public agency Delivery by experts.
(1) Neither the transferor or transferor's agents shall be liable for any error, inaccuracy or omission of any information delivered pursuant to this chapter if the error, inaccuracy or omission was not within the personal knowledge of the transferor or was based upon information timely provided by public agencies or other persons specified in subsection (3) of this section that is required to be disclosed pursuant to this chapter and ordinary care was exercised in obtaining and transmitting it.
(2) The delivery of any information required to be disclosed by this chapter to a prospective transferee by a public agency or other person providing information required to be disclosed pursuant to this chapter shall be deemed to comply with the requirements of this chapter and shall relieve the transferor or transferor's agent of any further duty under this chapter with respect to that item of information.
(3) The delivery of a report or opinion prepared by any person or professional who has been hired to perform an inspection of the subject property in connection with the proposed sale shall be sufficient compliance for application of the exemption provided in subsection (1) of this section if the information is provided to the prospective transferee pursuant to a request therefore, written or oral. In responding to such a request, an expert may indicate, in writing, an understanding that the information provided will be used in fulfilling the requirements of sections 55-2506 and 55-2507, Idaho Code, and if so, shall indicate the required disclosure or parts thereof to which the information being furnished is applicable. Where such a statement is furnished, the provider shall not be responsible for any items of information or parts thereof other than those expressly set forth in the statement.
History:
[55-2511, added 1994, ch. 366, sec. 1, p. 1177.]
TITLE 55 PROPERTY IN GENERAL
CHAPTER 25 PROPERTY CONDITION DISCLOSURE ACT
55-2515. Rescission by transferee.
Subject to section 55-2504, Idaho Code, if a transferee of residential real property receives a property disclosure form or an amendment of that form as described in section 55-2508, Idaho Code, after the transferee has entered into a transfer agreement with respect to the property, the transferee, after his receipt of the form or amendment may rescind the transfer agreement in a written, signed and dated document that is delivered to the transferor or his agents in accordance with section 55-2510, Idaho Code. Transferee's rescission must be based on a specific objection to a disclosure in the disclosure statement. The notice of rescission shall specifically identify the disclosure objected to by the transferee. Transferee incurs no legal liability to the transferor because of the rescission including, but not limited to, a civil action for specific performance of the transfer agreement. Upon the rescission of the transfer agreement the transferee is entitled to the return of, and the transferor shall return, any deposits made by the transferee in connection with the proposed transfer of the residential real property.
Subject to the provisions of section 55-2505, Idaho Code, a rescission of a transfer agreement may only occur if the transferee's written, signed and dated document of rescission is delivered to the transferor or his agent or subagent within three (3) business days following the date on which the transferee or his agent receives the property disclosure form prescribed under section 55-2508, Idaho Code. If no signed notice of rescission is received by the transferor within the three (3) day period, transferee's right to rescind is waived.
History:
[55-2515, added 1994, ch. 366, sec. 1, p. 1178; am. 1997, ch. 229, sec. 5, p. 670.]
Idaho Case Law
No recovery of purchase money paid on an executory contract for the sale of land can be recovered by vendee on rescission of the contract unless rescission agreement expressly or impliedly provides therefor. Williams v. Skelton, 40 Idaho 741, (1925).
In order to prevent forfeiture of payments made to an executory contract for the sale of land purchaser must establish by a preponderance of the evidence, that under the facts of the case the payments that were made on the contract were so disproportionate to the actual damages incurred by the sellers as to be exhorbitant amounting to an unconscionable penalty. Clampitt v. AMR Corp.; (ID Sup. Ct. 1985)
It is for the trial court to determine under the facts of any particular case whether the amount stipulated in damages bears such a reasonable relation to the damages actually sustained as to be enforceable as a provision for liquidated damages. Clampitt
In Papesh v. Wagnon, (ID Sup. Ct. 1916) the Idaho Supreme Court looked directly to the language of the contract to determine the intention of the parties. The case further cites California case law in stating courts of equity have no power to make contracts for parties, nor alter those which were deliberately made.
