Opinion
No. CV 01-0096809S
October 16, 2003
MEMORANDUM OF DECISION
In this matter the plaintiff seeks, through the remedy of specific performance, to enforce an option contract for the sale of four acres in Westbrook, Connecticut. The sole issue in this dispute is whether the description of the four-acre parcel is sufficiently precise to withstand defendants' claim that the contact fails the Statute of Frauds because the description is indefinite.
The facts giving rise to this action are undisputed. On June 30, 2000, the parties entered into an agreement for the defendants to purchase approximately 100 undeveloped acres in Westbrook. Ancillary to that agreement, the parties also entered into an option agreement that provided the plaintiff with the opportunity to purchase back from the defendants four (4) of the acres that were to be conveyed in the sale of the larger tract. The description of the four-acre tract is set forth in Schedule A to the option contract.
A 4 acre parcel, to be specifically, delineated located on the Town of Westbrook County of Middlesex and State of Connecticut, and located adjacent to Toby Hill road in said town of Westbrook. Said parcel is to be located in the Northwest corner of that certain parcel of land owned by the Optionor and known as Westbrook Assessors' Map 66, lot E80.
Reference may be had to a certain quitclaim deed from Anthony Papa and Robert Rubin to the Optionor dated June 30, 2000 and recorded in the Westbrook Land Records of even date herewith.
As indicated in Appendix A of the option agreement, the parcel was to be "specifically delineated . . . in the Northwest corner of that [larger] parcel" as described in the Westbrook Assessors' Map 66. The parcel is not further defined or located in the option agreement or Appendix A.
The option agreement set forth a "Special Condition" requiring the defendants to prepare an A-2 survey describing the four-acre parcel. Pursuant to the Special Condition, if the plaintiff failed to provide the A-2 survey, the plaintiff was authorized to prepare the survey at the defendants' expense. Because, in fact, the Raymonds failed to prepare such a survey, the plaintiff's attorney retained John Cruet to prepare such a survey. Mr. Cruet testified that he did not speak directly with the plaintiffs about the shape, location or contours of the four-acre parcel. Rather, he was given general instructions to define a four-acre parcel within the northwest area of the conveyed property. Mr. Cruet first prepared a four acre description that was "square" in shape, but was then told by the plaintiff's counsel to revise the description such that the parcel would be triangular in shape.
The plaintiff timely exercised his option, but the defendants refused to hold a closing, apparently because the larger parcel they acquired was not 100 acres, as they believed, but approximately 89 acres. The defendants now argue that they were justified in refusing to convey the four acres covered by the option agreement because the option contract does not contain a sufficiently precise definition of the property to satisfy the Statute of Frauds.
General Statutes § 52-550 provides that "No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, to be charged . . . (4) upon any agreement for the sale of real property or any interest in or concerning real property." Option agreements are subject to the Statute of Frauds. Montanaro Bros. Builders, Inc. v. Snow, 190 Conn. 481 (1983). Montanaro, involved a dispute over an option agreement containing language similar to the agreement in dispute in this case: "The seller believes that the subject premises contain approximately 73 acres. The parties realize the land had not yet been completely surveyed. In the event the buyer exercises the option, the buyer will present the seller with a survey and subdivision plan. The subdivision plan will delineate the seller's present homestead and approximately six acres, more or less, which the seller will retain as his own." The Supreme Court upheld the trial court's refusal to enforce the option, concluding that the trial court properly found that there "was no way to ascertain the location of the defendant sellers' retained homestead and six acres." Id., at 486.
Likewise, in this case, there is no way to specifically ascertain the location of the retained four-acre parcel, other than the general description of its location in the northwest portion of the larger tract as set forth in the Assessors' map. The fact as the plaintiff argues, that four acres virtually comprises the northwest corner of the property does not provide the specificity of description required by the Statute of Frauds. As evidenced by plaintiff's own expert who was retained to define and describe the four acres, it might be a plot essentially square in shape, as he first drew it, or as later modified, it might be a plot triangular in shape. The uncertainty revealed by the plaintiff's own uncertainty as to the shape, and therefore the location and description of the four acres, requires the conclusion that the option agreement fails to satisfy the Statute of Frauds.
Pigeon v. Hatheway, 156 Conn. 175 (1968), relied on by the plaintiff, is not inconsistent with the court's conclusion in this case, or with Montanaro, supra. Pigeon held that "the description of land contained in a contract of sale or any option to purchase is sufficiently definite to satisfy the Statue of Frauds whenever it is reasonably certain from the contract itself, or can be made certain through reference to record, contract, map or fact by resort to extraneous evidence thereof whether oral or written." Pigeon v. Hatheway, supra 156 Conn. at 182 (internal quotations and citations omitted). In this case, as in Hatheway, neither the contract itself nor extrinsic evidence, provides the specificity required to satisfy the Statute of Frauds. The extrinsic evidence presented in this case indicates that the location of the four acres cannot be precisely identified even with reference to the Assessors' Maps, the parties' negotiations or discussions amongst and between counsel.
Accordingly, judgment shall enter for the defendants as to the plaintiff's complaint and as to the defendants' counterclaim quieting title to the property in question and declaring void and discharging the "Option to Purchase" dated June 30, 2000 and recorded in the Westbrook Land Records at Volume 206 at page 257.
ROBERT HOLZBERG, J.