Sunday, June 11, 2006
Estoppel Certificates
Real Estate ultimate weapon unveiled (wait until the Chinese read this Article). Written at a professional level especially for realtors, notaries and lawyers. Investors may want to take a look too, but are advised that no legal opinion is herein offered, rendered, inferred or otherwise implied.
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Estoppel, to the non-initiated, sounds more like the newest toy in the Pentagon’s vast array of secret weaponry and armaments, something that belongs more to Area 51 than the real estate world, or perhaps the latest scandal to permeate Capitol Hill. “CIA’s Probe Leak: The New Martin Lochheed F-22 Supersonic Estoppel!”, one might envision reading one day in the front page of USA Today. But readers of my Posts know better ...
In Real Estate, an “Estoppel Certificate” is a document signed by the Seller, under oath, confirming the representations made by the Seller in the Contract of Purchase and Sale. The reasons for the Buyer to request an Estoppel Certificate are twofold. First, to confirm the Seller’s representations as stated above and, secondly, to bar and prevent the Seller from later on asserting a fact, that is inconsistent with the terms of the Contract.
For instance, when purchasing a rental property – whether a house or an apartment building – an investor might want to insert the following two conditions precedent (‘subject to’ clauses). The first might read:
“Subject to the Buyer by ( insert date ) reviewing and approving the Residential Tenancy Agreement(s) presently in effect and covering the property herein bought and sold. Seller warrants that the term(s) of the tenancy is/are for a period of ( insert length of tenancy ), the monthly rent(s) is/are ( insert amount ) and that the last rental increase was on ( insert date )”.
What happens if, by the time all the subjects are removed (and the property is virtually sold) and the time the investor completes the transaction, the tenant is run over by a bus and dies? In some instances the market value of the subject property may be altered, as in the case of an investor purchasing a professional building. This is where an Estoppel Certificate fits in.
The second clause might read:
“Subject to the Buyer, after all the other subjects herein are removed but in no event before two weeks (or any other time) prior to completion and no later than one week (or any other time) prior to completion, receiving, perusing and approving an Estoppel Certificate ratified by Seller covering the existence and confirming the validity at law of the subject matter and terms of the tenancies herein. Failure by the Seller to provide such Estoppel Certificate in the aforesaid time-frame will render this Contract null and void, and all deposit monies until then paid by Buyer will be refunded to Buyer forthwith with interest accrued thereon, if any there be”.
The reason for Estoppel Certificates to exist in Real Estate is to be found in the equitable Doctrine Of The Promissory Estoppel. Under this doctrine, one party is barred and prevented from withdrawing a promise made to another party, if the latter has relied on that promise and acted upon it. All the more so, since contracts in real estate are made ‘under seal’ (deeds) and, as such, the rule of evidence arising from the special status of a deed is that the parties are expected to take greater care to verify the contents of the agreement and their validity at law, before consummating it.
The American Law Institute goes one step further by discerning between equitable and promissory estoppel in its Restatements of Contracts as follows:
“Equitable estoppel is distinct from promissory estoppel. Promissory estoppel involves a clear and definite promise, while equitable estoppel involves only representations and inducements. The representations at issue in promissory estoppel go to future intent, while equitable estoppel involves statement of past or present fact. It is also said that equitable estoppel lies in tort, while promissory estoppel lies in contract. The major distinction between equitable estoppel and promissory estoppel is that the former is available only as a defense, while promissory estoppel can be used as the basis of a cause of action for damages. The American Law Institute’s website can be found at http://www.ali.org.
All the foregoing simply goes to prove, once again, that the discipline of real estate wheeling and dealing is littered with rubbish all the way – until such time as a contract is entered into and ratified by the parties, at which time Real Estate suddenly becomes all too deadly serious.
Luigi Frascati
Real Estate Chronicle
