FAQ: Brian, the seller died before we could close on our home in Hampton Roads, Virginia, can the buyer make the seller’s heirs honor the contract?
ANSWER: Yes.
The Virginia Supreme Court answered this question in the affirmative in the case of Moore’s Adm’rs v. Fitz Randolph, 33 Va. 175 (1835). This result is true not only in Virginia, but to my knowledge in all fifty states. In many jurisdictions the answer will turn on whether the contract contains language stating that it is “binding on the heirs” of the parties. Curiously, The REIN Standard Purchase Agreement no longer contains that language (the VAR contract still does), but the law (at least it seems in Virginia) presumes that it is meant to be binding on the seller’s estate anyway.
Sometimes the seller dies before the deed is executed and so the question becomes: who will sign the deed? Again, Virginia law provides a pretty clear answer. Va. Code § 64.1-148 provides that “When any deceased person shall have executed and delivered a bona fide written contract of sale, purchase option, or other agreement binding such deceased person, his heirs, personal representatives, or assigns, to convey any real property or interest therein, his personal representatives may, upon full compliance by the purchaser with the terms and conditions of such contract, option or agreement execute a deed and do all things necessary to effect the transfer of title to such real property or interest therein to the purchaser and such transfer shall be as effective as if it had been made by the deceased obligor.”
It may well be that closing will be delayed somewhat when a seller dies (for example, if the seller had not signed the deed you might need someone to qualify on the estate in order to sign the deed), but as you can see it is clear that the buyer can insist and require the estate to conclude the transaction.
Is the reverse true? Can a seller require a deceased buyer’s estate to perform the contract? While in theory it is true (the case above refused to answer that converse question), bear in mind the practical nature of our modern contracts – financing based on the buyer’s income not to mention actually being alive, owner occupancy, etc. would almost certainly dictate a different result. Perhaps if the contract were a straightforward, non-personalized, cash deal one could bind a buyer’s estate. Otherwise I would say no.
Brian Lytle Esq.
A brief review by Real Estate Attorney Brian Lytle Esq. www.LytleLaw.com A general practice law firm located in Newport News, Virginia. From two office locations on the Virginia Peninsula we serve clients and try cases across the Commonwealth including the Peninsula, Newport News, Hampton, Williamsburg, James City and York County areas. Lytle Law has the experience and ability to satisfy nearly all of a client’s legal needs, and where we believe we need help we will either associate appropriate counsel or provide a referral.
Brian is the president of Lytle Title www.LytleTitle.com Lytle Title & Escrow, LLC a Virginia licensed, insured, and bonded real estate settlement company doing business as Lytle Title. With offices in Newport News and WIlliamsburg, Virginia, we primarily serve the Virginia Peninsula (Hampton, Newport News, York County, James City County and Williamsburg), but we also regularly serve surrounding areas, to include Suffolk, Isle of Wight, Gloucester and the greater Tidewater, Virginia area.
Copyright © 2008 Brian D. Lytle. Reprinted here with permission.
For further information about real estate in Williamsburg, James City, New Kent or York County Virginia contact: John Womeldorf/ REALTOR
Liz Moore & Associates
757 254 8136
John@MrWilliamsburg.com email
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www.MrHamptonroads.com/ website
www.MrTidewater.com/ website
www.MrVaBeach.com/ website
Williamsburg Real Estate Resource. Search for Homes & Land for sale in Williamsburg Virginia & surrounding areas click here :CLICK HERE WILLIAMSBURG VA MLS HOME SEARCH
CLICK HERE FOR Real Estate Home Search Tidewater Hampton Roads Va
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Williamsburg Real Estate Blog II
Williamsburg Happenings/ Events Blog
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