Donahue v. Nagel

“A promise to convey an interest in real property, no less than the conveyance itself, is subject to the statute of frauds.” Parthenon Construction & Design, Inc. v. Neuman, 166 Or App 172 (2000).

Plaintiffs appealed a judgment dismissing their claims for trespass, nuisance and ejectment, and granting specific performance on defendants’ counterclaim for breach of a settlement agreement. Plaintiffs assigned error to the trial court’s determination that the parties had reached an agreement, and that a provision of the agreement, which created an easement, was not void under the statute of frauds. On appeal, plaintiffs admitted that the settlement agreement reached in mediation included a provision to convey an easement to Defendants, but contended that Defendants’ attempt to include a “good neighbor” provision in the agreement constituted a counteroffer, which defeated a meeting of the minds. The Court found that the inclusion of this provision was not a material term and therefore the contract remained intact. Plaintiffs also assigned error to the trial court’s determination that the statute of frauds was not applicable to the provision of the agreement, which created an easement for Defendant’s benefit. Defendants argued that the provision was merely a promise to convey an easement, distinct from the actual conveyance of an easement. “A promise to convey an interest in real property, no less than the conveyance itself, is subject to the statute of frauds.” Parthenon Construction & Design, Inc. v. Neuman, 166 Or App 172 (2000). Because the statute of frauds is applicable to easements, the Court held that the trial court erred in determining that this provision was not subject to the statute of frauds. General and supplemental judgments vacated and remanded.