STUART G. MORAITIS, APPELLANT,
v.
GEORGE R. GALLUZZO AND ALANA GALLUZZO, APPELLEES
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Moraitis and Galluzzo were co-tenants in common of a dental office building. When Moraitis left the practice, Galluzzo claimed an oral contract to purchase Moraitis's interest and sought specific performance. The trial court granted specific performance and denied Moraitis's partition claim, but the appellate court reversed, holding that Galluzzo failed to satisfy the Statute of Frauds requirements for oral real estate contracts.
The court reversed, holding that Galluzzo failed to satisfy the three elements required to remove an oral real estate contract from the Statute of Frauds: he presented no proof of payment of any part of the purchase price, and his continued possession and repairs were consistent with his ownership as a tenant in common rather than pursuant to an oral contract. Moraitis, having defeated Galluzzo's specific performance claim, is entitled to partition and accounting as a matter of right.
[1] An oral contract for the sale of realty is removed from the Statute of Frauds only if the purchaser pays all or part of the consideration, enters into possession, and mak…
[2] Possession of property pursuant to an oral contract for sale must be shown to be under the contract, not as a result of a prior tenancy.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In order to remove an oral contract for the sale of realty from the Statute of Frauds, Section 725.01, Florida Statutes (1985), a purchaser must pay all or part of the consideration, enter into possession, and make valuable improvements on the property.”
Establishes the three-part test for removing oral real estate contracts from the Statute of Frauds.
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Join FLexlaw to unlock all legal intelligenceMoraitis and Galluzzo, both dentists, owned a dental office building as tenants in common and shared operating expenses and equipment. After several y…
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COWART, EDWARD D., Associate Judge.
This appeal follows a final judgment granting specific performance of an oral agreement for the sale of realty and denying appellant’s application for partition and accounting. We reverse.
Appellant, Stuart G. Moraitis, owned a one-half interest in a dental office building as tenants in common with George R. Gal-luzzo and his wife, Alana, appellees. When the parties entered this transaction, Morai-tis and Galluzzo, who are both dentists, agreed to split their operating expenses in half. In addition, they jointly owned some of the dental equipment.
After several years, Moraitis moved his practice from the building he shared with Galluzzo. This prompted Galluzzo to change the locks on the building and to make certain repairs. Moraitis then sued the Galluzzos for partition of the realty and of the personalty and for an accounting for rents and profit. The Galluzzos, in turn, contended that they had an oral contract to purchase the property from Moraitis and counterclaimed for specific performance.
In order to remove an oral contract for the sale of realty from the Statute of Frauds, Section 725.01, Florida Statutes (1985), a purchaser must pay all or part of the consideration, enter into possession, and make valuable improvements on the property. Miller v. Murray, 68 So. 2d 594 (Fla.1953); Avery v. Marine Bank & Trust Company, 216 So. 2d 251 (Fla. 2d DCA 1968). Moreover, the contract remains unenforceable unless the purchaser shows that he is in possession pursuant to the oral contract rather than as a result of a prior tenancy. See Tuebner v. El Dick, 449 So. 2d 372 (Fla. 4th DCA 1984); Polishuck v. Cadin, 411 So. 2d 244 (Fla. 3d DCA), review denied, 417 So. 2d 328 (Fla.1982). Each of these elements must be proven by clear and convincing evidence. Unatin v. Hudon, 383 So. 2d 1131 (Fla. 5th DCA 1980); Hi-Acres Groves, Inc. v. Pope Bassett, 338 So. 2d 1076 (Fla. 4th DCA 1976).
Galluzzo failed to carry this burden. First, although the trial court found that there was a contract between the parties, there was no proof that Galluzzo tendered any part of the alleged purchase price to Moraitis. Second, Galluzzo’s continued possession of the premises after the departure of Moraitis, and the repairs made on the property are consistent with Galluz-zo’s ownership of the building as a tenant in common with Moraitis. Consequently, the trial court erred in concluding that Gal-luzzo’s possession was pursuant to the alleged oral contract.1
At the same time, we note that where property is held in a tenancy in common, partition is practically a matter of right. Condrey v. Condrey, 92 So. 2d 423 (Fla.1957); Hazelwood v. Hazelwood, 345 So. 2d 819 (Fla. 4th DCA 1977). Having defeated Galluzzo’s claim for specific performance Moraitis is entitled to judgment on his claim for partition and accounting, including an award for the fair market value of the dental equipment rather than the depreciated value set out in the final judgment which Galluzzo concedes to be erroneous. Accordingly, we reverse the final judgment granting specific performance of the oral agreement and remand the cause for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
ANSTEAD and WALDEN, JJ., concur. . The trial court also erred in awarding attorney's fees to Galluzzo, an award made apparently on the erroneous basis that even though partition was denied, the attorneys fee provision in the partition statute applied. See Cannon v. Morris, 407 So. 2d 372 (Fla. 1st DCA 1981).
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Brevard Cnty. Fair Ass'n, Inc. v. Cocoa Expo, Inc., 832 So. 2d 147 (Fla. 5th DCA 2002)…of its obligations or rights must have been established by competent proof, which is definite and certain. Muhtar v. Goldman, 419 So. 2d 383 (Fla. 3d DCA 1982); Batista v. Walter & Bernstein, 378 So. 2d 1321 (Fla. 3d DCA 1980); Moraitis v. Galluzzo, 487 So. 2d 1151 (Fla. 4th DCA 1986). We conclude that this higher burden of proof was in fact met. The terms of the modification which increased Brevard Fair’s rent were discussed and agreed upon in 1990 by the three principals; Was-din, Turner and Stottler. As in…
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Ketron B. Brown and Judy L. Brown v. Kelly, 545 So. 2d 518 (Fla. 5th DCA 1989)…agreement, was not enforceable because it was not in writing as required by section 725.01, Florida Statutes, and none of the elements necessary to remove the alleged oral agreement from the Statute of Frauds were present. See Moraitis v. Galluzzo, 487 So. 2d 1151 (Fla. 4th DCA 1986). Further, any alleged oral agreements made prior to the execution of the two written contracts were merged into the written contracts. Financial Federal Savings v. Continental Enterprise, Inc., 338 So. 2d 907 (Fla. 3d DCA 1976);…
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Goldman v. Citicorp Savings OF Florida, 552 So. 2d 1124 (Fla. 3d DCA 1989)…performance where the doctrine of “part performance” is raised; one indispensible element of the doctrine is possession of the property by the party seeking the specific performance. Miller v. Murray, 68 So. 2d 594 (Fla.1953); Moraitas v. Galluzzo, 487 So. 2d 1151 (Fla. 4th DCA 1986); Polishuk v. Caidin, 411 So. 2d 244 (Fla. 3d DCA), review denied, 417 So. 2d 328 (Fla.1982). Here, it is undisputed that Goldman never had possession of the property. Therefore, the doctrine of part performance is unavailable to…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Condrey v. Condrey, 92 So. 2d 423 (Fla. 1957)
- Miller v. Murray, 68 So. 2d 594 (Fla. 1953)
- Cannon v. Morris, 407 So. 2d 372 (Fla. 1st DCA 1981)
- Maxwell G. Hazelwood v. Hazelwood, 345 So. 2d 819 (Fla. 4th DCA 1977)
- Hi-Acres Groves, Inc. v. Bassett, 338 So. 2d 1076 (Fla. 4th DCA 1976)
- Avery v. Marine Bank & Tr. Co., 216 So. 2d 251 (Fla. 2d DCA 1968)
- Unatin v. Hudon, 383 So. 2d 1131 (Fla. 5th DCA 1980)
- Polishuk v. Caidin, 411 So. 2d 244 (Fla. 3d DCA 1982)
- Teubner v. Saadedine M. El-Dick, 449 So. 2d 372 (Fla. 4th DCA 1984)