unrecurded real estate contract foreclosure

[storybookjim]

unrecorded real estate contract foreclosure

What is the name of your state? Washington

My understanding is that in Washington State, a real estate transfer must be recorded to be considered a legal sale. This contract contains a clause that prohibits recording by either party. The original intent was: "until you cash me out, you don't get title". I need to "foreclose" on the property or "forfeit" the contract. But since those laws only apply to "perfected" real estate sales (meaning legal, recorded sales), I've got a bit of a dilemma here. It seems to me that what we have here is not a foreclosure but rather a classic breach of contract situation; and the terms of the contract should be literally interperpreted and applied. I need suggestions on how to proceed. Thanks.

 

[HomeGuru]

What is the name of your state? Washington

My understanding is that in Washington State, a real estate transfer must be recorded to be considered a legal sale.

**A: not true as an unrecorded contract is still enforceable.
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This contract contains a clause that prohibits recording by either party.

**A: most likely because of a "due on sale" clause in the mortgage note;
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The original intent was: "until you cash me out, you don't get title". I need to "foreclose" on the property or "forfeit" the contract.

**A: so exactly what remedies does the Seller have due to default as stated in the unrecorded contract.

*******
But since those laws only apply to "perfected" real estate sales (meaning legal, recorded sales), I've got a bit of a dilemma here.

**A: your interpretation and definition of perfected is not true. If the contract contains a foreclosure remedy, then foreclosure action is legal even if the contract was not recorded.
**********


It seems to me that what we have here is not a foreclosure but rather a classic breach of contract situation; and the terms of the contract should be literally interperpreted and applied. I need suggestions on how to proceed. Thanks.

**A: I hope you did not play attorney and write the contract yourself.

 

[storybookjim]

Of course I (we) played attorney. Smack me later.
The default remedy in the contract is, essentially, if buyer goes into payment default, and doesn't cure within 30 days of cert mail notification, then all buyer rights to ownership cease and property must be surrendered immediately. Debt owing to seller is cancelled as well. That's the entire remedy and nothing more. The word "foreclosure" does not appear anywhere. The contract is indeed enforcable. And I will certainly retain an attorney for that. But I would prefer to sue for specific performance (specifically: buyer defaulted, didn't cure within 30 days of notification, will not vacate, is contractually obligated to do so). Foreclosure is an entirely different, and more convoluted legal process. Question is: might it be possible to bypass the foreclosure process, arguing that because the sale was not recorded, the "buyer" never really bought (perfected title to) the property in the first place; and is therefore bound by the contract terms. The flip side: since this is an agreement for the purchase of real estate, whether or not it was recorded may be immaterial to a judge. A specific performance lawsuit might simply be tossed out if I brought it. Which way to go. That's what I need to determine.

 

[nightrome2004]

You are in a bad contract there, did you read it. You would never want to agree to anything like that. Not much hope there.

 

[nightrome2004]

You didn't say if the home is in default of payments, you are going after someone who didn't live up to the contract , that is a different matter, if you own the home and it is not in default not a foreclosure issue. You just have to spend time and money on money owed you. Involve court and time and money.