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    The Greater Williamsburg area is an exciting place to live and work, especially because of the large number of entrepreneurs who have built businesses from the ground up. These entrepreneurs have taken their passion and made it their profession. Many of us want to take that step. Before you begin, you need to think of the type of business entity you want to form. Our attorneys have extensive business experience, from small one-person companies to publicly traded major corporations. Our attorneys are among the leaders in Virginia in the representation of Common Interest Communities. These communities are generally referred to as "homeowners associations," or "HOAs," and "condominium associations." In the greater Williamsburg area alone, we provide legal assistance to nearly 100 associations. Our attorneys have successfully prosecuted and defended a wide array of civil disputes involving community association covenant enforcement, commercial transactions, construction disputes, contracts, real estate matters, boundary line and easement disputes, employment matters, antitrust litigation, copyright violations, administrative proceedings, and estate issues. Real Estate law encompasses a wide variety of matters, and our attorneys have vast experience to assist you. Whether you need assistance with a commercial or residential closing, or you have questions relating to residential or commercial leasing, we provide experienced advice and counsel to our clients. Zoning law can be a complicated maze of statutes and ordinances. We have ample experience in successful applications for rezoning, variance, and special use permit requests. Finally, commercial and residential construction provide special challenges with respect to financing issues and the construction process. We serve as counsel to various financial institutions.

Real Estate Listing Agreements for the sale of property: Are they enforceable even if not in writing?

Generally speaking a party can enforce an oral agreement. However, courts will not enforce certain contracts unless they are in writing. For example, under Virginia Code § 11-2, commonly known as the Statute of Frauds, an agreement or contract for services to be performed in the sale of real estate by a real estate broker or real estate sales person is not enforceable “[u]nless a promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof, is in writing and signed by the party to be charged or his agent . . . .”

Most real estate agents and brokers understand the importance of having written listing agreements with their sellers. However, a recent decision of the Supreme Court of Virginia points out that even in the absence of a written listing agreement, an oral listing contract may be enforceable if there is sufficient documentation to remove it from the bar to enforcement of the Statute of Frauds. The Virginia Supreme Court, in the case of C. Porter Vaughan, Inc., Realtors v. Most Reverend Francis X. DiLorenzo, Bishop of The Catholic Diocese of Richmond, 279 Va. 449, 689 S.E.2d 656 (2010), better defined what is meant by “sufficient documentation.”

House For Sale

The purpose of the Statute of Frauds is to ensure that there is reliable evidence of the existence and terms of certain types of contracts in order to prevent acts of fraud. In the case of contracts for services related to the sale of real estate, the Virginia Supreme Court previously stated that a major purpose of the statute is to protect the public from unscrupulous real estate agents and brokers. H-B Ltd. Partnership v. Wimmer, 220 Va. 176, 179, 257 S.E.2d 770, 773 (1979).

In Vaughn, the recent Supreme Court case, a Richmond broker sued a seller with whom the broker alleged an oral contract to employ the broker to sell certain property. The Circuit Court for the City of Richmond held that the suit was barred by the statute of frauds, finding that various writings offered by the broker were not sufficient to overcome the statute’s bar to enforcement of an oral contract. The Supreme Court reversed the Circuit Court and remanded the case for a trial to determine the precise terms of the oral contract.

The Court held that a writing is sufficient to remove the bar of the statute of frauds if it “contains the essential terms of the agreement.” In this case, the writing that the Court held to be sufficient was a previous, failed contract for the sale of the same property to a party different from the ultimate purchaser. That contract identified the seller and buyer, identified the property at issue, gave an “approximate” purchase price, and provided for a brokerage commission to be paid to the broker at closing. The Court held that “[t]his writing alone is sufficient written evidence of an oral agreement between [the broker and the seller] to remove the bar of the statute of frauds.” The Court noted in closing that “[o]f course, [the broker] will bear the burden of proof concerning the oral agreement at trial.”

It is always better to have your written agreements because the terms are defined and definite. Furthermore, certain contracts must be in writing. However, when in doubt, contact an attorney experienced in real estate litigation to answer your questions.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia






John Tarley

John Tarley

John is the firm's managing partner and chairs the firm's small business, zoning, and litigation practice areas.

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Filed under: General Interest, Real Estate Litigation, Real Estate Strategies, State & Federal Litigation by John Tarley

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