GA Code § 23-2-131 (2021)
2021 Georgia Code|Title 23 - Equity|Chapter 2 - Grounds for Equitable Relief|Article 7 - Nonperformance of Contract|§ 23-2-131. When Specific Performance of Parol Contract for Land Decreed; Sufficient Part Performance

  The specific performance of a parol contract as to land shall be decreed if the defendant admits the contract or if the contract has been so far executed by the party seeking relief and at the instance or by the inducements of the other party that if the contract were abandoned he could not be restored to his former position.   Full payment alone accepted by the vendor, or partial payment accompanied with possession, or possession alone with valuable improvements, if clearly proved in each case to have been done with reference to the parol contract, shall be sufficient part performance to justify a decree.    (Orig. Code 1863, § 3119; Code 1868, § 3131; Code 1873, § 3187; Code 1882, § 3187; Civil Code 1895, § 4037; Civil Code 1910, § 4634; Code 1933, § 37-802.)   Cross references.   - Form of complaint for specific performance of written contract to convey land, § 9-11-112.   Law reviews.   - For survey article on real property, see 34 Mercer L. Rev. 255 (1982).   JUDICIAL DECISIONS    Construction with O.C.G.A. § 53-4-30. - More specific provisions of O.C.G.A. § 53-4-30 addressing contracts to make a will control over the more general provisions of O.C.G.A. §§ 23-2-131 and23-2-132 addressing any parol contract as to land and any voluntary agreement or merely gratuitous contract to land, respectively; thus, the equitable relief of specific performance is not available as a means of enforcing an oral will contract. Newton v. Lawson, 313 Ga. App. 29, 720 S.E.2d 353 (2011).   Partial payment and possession.    - While payment of a part of the purchase-money is not alone such part performance as will take the case out of the statute of frauds, partial payment of the purchase-money accompanied with possession will amount to such part performance as to take the contract out of the statute and to authorize the specific performance of a parol contract. Smith v. Cox, 247 Ga. 563, 277 S.E.2d 512 (1981).   Payment in full on oral contract for sale of land.    - In a suit for specific performance brought by a plaintiff seeking to enforce an alleged oral contract to sell real property, the trial court erred in granting summary judgment to the defendant based on the Statute of Frauds preventing recovery to the plaintiff; the plaintiff had presented evidence establishing the existence of an oral contract for the sale of the property and that it was excepted from the Statute of Frauds based on the plaintiff's performance of paying for the property in full, and thus, issues of fact remained as to whether defendant's decedent had accepted performance through payments received by a sibling and whether, in light of the plaintiff's previous tenancy, the plaintiff's performance was inconsistent with the lack of a contract to sell the property. Edwards v. Sewell, 289 Ga. App. 128, 656 S.E.2d 246 (2008).   Possession with valuable improvements.    - When a party seeking specific performance of an oral contract to sell realty relies on the principle of possession with improvements, it must be shown that the possession and improvement arose by virtue of and in the faith of the oral contract or promise, so as to take the case out of the statute of frauds and constitute the equivalent of a writing by showing acts unequivocally referring to the alleged contract or promise; thus, where a party takes possession under an oral contract to rent, and also alleged an oral option to purchase, the possession is under the tenancy and cannot also be shown to be in reliance on the option. Smith v. Cox, 247 Ga. 563, 277 S.E.2d 512 (1981).    Proof of possession in reliance on the oral option to purchase is required of a party claiming specific performance of an alleged option agreement under subsection (b) of O.C.G.A. § 23-2-131. Engram v. Engram, 265 Ga. 804, 463 S.E.2d 12 (1995).   Creation of parol license to use land did not interfere with existing right of first refusal.    - In a suit brought by a property owner seeking to specifically perform an oral agreement to purchase a strip of real estate, the trial court properly denied the property owner's request for an interlocutory judgment based on a violation of the statute of frauds and because another held a first right of refusal over the sale/purchase of the property. However, the trial court erred by concluding that the property owner had not obtained a parol license to use the strip since the property owner had made expenditures to improve the land and, as to the right of first refusal held by another, the grant of a parol license was not the equivalent to a sale of the property to have in anyway interfered with that right. Meinhardt v. Christianson, 289 Ga. App. 238, 656 S.E.2d 568 (2008).   Sufficiency of complaint.    - Plaintiff's complaint alleging that she entered into a parol agreement with her husband to dissolve the marriage, divide the marital estate, and arrange for child support, that she possessed the property and paid the mortgage pursuant to the agreement, and that she maintained and improved the property, stated a claim under O.C.G.A. § 23-2-131. Coleman v. Coleman, 265 Ga. 568, 459 S.E.2d 166 (1995).   Specific performance warranted.    - Plaintiff's possession and partial payment, as well as plaintiff's possession with valuable improvements, and the payment of tax and mortgage arrears satisfied the requirements for an order of specific performance of an oral contract for the sale of land. Dobbs v. Dobbs, 270 Ga. 887, 515 S.E.2d 384 (1999).    Under an oral agreement, the only performance which plaintiff had yet to complete was his payment of the remaining portion of the agreed purchase price and that payment was not due until closing; therefore, the trial court properly granted summary judgment on plaintiff's claim for specific performance. Braddy v. Boynton, 271 Ga. 55, 515 S.E.2d 394 (1999).    Because a contractor's performance and an owner's acceptance of that performance satisfied the requirements of the statute of frauds, O.C.G.A. § 13-5-31, and the plats and deeds established the requisite description of the properties to be exchanged, the contractor was entitled to specific performance under O.C.G.A. § 23-2-131(a). Masters v. Redwine, 279 Ga. 432, 615 S.E.2d 118 (2005).    Superior court did not err in granting a purchaser summary judgment in the purchaser's action seeking specific performance pursuant to O.C.G.A. § 23-2-131 and requiring a mortgage company to deliver a deed conveying certain property because the company failed to demonstrate any merit in the company's contention that the superior court improperly refused to invoke the court's equitable power to relieve the company from performing under the foreclosure sale contract on the ground that the opening bid the company set forth was a mistake. Because the dollar amount of the high bid at the foreclosure sale alone made it immediately apparent that there had been a mistake, a reasonable inference arose that had reasonable diligence been employed before the foreclosure sale, the alleged unilateral mistake would not have occurred. Decision One Mortg. Co., LLC v. Victor Warren Props., Inc., 304 Ga. App. 423, 696 S.E.2d 145 (2010).   Specific performance not warranted.    - Specific performance of a low-cost lease of property was not merited because plaintiff had been paid back for the investment in commencing a landfill on the property and did not argue that an award of money damages was not sufficient. Elliott v. McDaniel, 224 Ga. App. 848, 483 S.E.2d 104 (1997), rev'd on other grounds, 269 Ga. 262, 497 S.E.2d 786 (1998).    Where the defendant simply made a bid for the property at a nonjudicial foreclosure sale, which was accepted by the seller, no partial performance of the contract occurred and the transaction, therefore, stayed within the confines of the statute of frauds. James v. Safari Enters., Inc., 244 Ga. App. 813, 537 S.E.2d 103 (2000).    The trial court did not err in directing a verdict against a counterclaim to enforce an oral agreement between the parties to reconvey property to the defendant, notwithstanding proof of part performance by the defendant consisting of the defendant's continued possession after conveying the property plus making monthly payments to the plaintiff of approximately $450, since, although this was consistent with the existence of an oral agreement to convey the property back to the defendant after a loan was paid off, it was also consistent with the lack of such an agreement, since monthly payments approximating rent did not establish part performance of the alleged oral agreement to reconvey the property to the defendant. Rose v. Cain, 247 Ga. App. 481, 544 S.E.2d 453 (2001).    When a party who leased certain land from its supposed owner, who could not read, attempted to enforce an option to purchase the land, which was included in documents the lessee gave the owner to sign, the lessee's partial payment, possession of, and improvements to the land did not entitle the lessee to enforce the contract under O.C.G.A. § 23-2-131(a) because the lessee was not trying to enforce an oral contract, to which the statute referred, and the lessee's possession and payment arose by virtue of the lease provision of the parties' agreement, rather than any option to purchase. Makowski v. Waldrop, 262 Ga. App. 130, 584 S.E.2d 714 (2003).    A trial court erred in finding that a lease-purchase agreement was enforceable because, though it satisfied the statute of frauds, it was invalid for failure of consideration in that the lessee/proposed purchaser never paid the rent owed nor any of the property taxes, which not only invalidated the agreement but voided the purchase option under O.C.G.A. § 13-1-8(a). Further, the trial court erred in holding that the lessee/proposed purchaser was entitled to specific performance of the agreement based on repairs made since there was no legal authority to support the trial court's proposition that part performance of an otherwise unenforceable written agreement, as modified by subsequent oral agreements between the parties, transformed it into an enforceable parol contract. Estate of Ryan v. Shuman, 288 Ga. App. 868, 655 S.E.2d 644 (2007), cert. denied, No. S08C0664, 2008 Ga. LEXIS 482 (Ga. 2008).    Decedent's son, grandson, and friend were not entitled to specific performance of a will contract because they could not meet the requirements of O.C.G.A. §§ 23-2-131 and23-2-132; appellants failed to show that the appellants had possession of the decedent's property and that the appellants made valuable improvements thereto simply by virtue of the decedent's promise to use the decedent's will to leave the appellants a life estate. Newton v. Lawson, 313 Ga. App. 29, 720 S.E.2d 353 (2011).   Conflicting theories about land ownership was jury matter.    - Trial court properly allowed argument and a jury instruction on O.C.G.A. § 53-4-30 as the parties agreed that an individual's former father-in-law promised to convey certain property to the individual and his ex-wife, upon the father-in-law's death; the jury could resolve any conflicting theories as to the ownership of the land and the applicability of O.C.G.A. §§ 23-2-131(a) and23-2-132. Jackson v. Neese, 276 Ga. App. 724, 624 S.E.2d 139 (2005).    Cited in Shivers v. Webster, 224 Ga. App. 254, 480 S.E.2d 304 (1997); Pettigrew v. Collins, 246 Ga. App. 207, 539 S.E.2d 214 (2000).   RESEARCH REFERENCES   ALR.   - Special or consequential damages recoverable, on account of delay in delivering possession, by purchaser of real property awarded specific performance, 11 A.L.R.4th 891.