Estate of Banta, No. 02-21-00327-CV, 2022 WL 2526940 (Tex. App.—Fort Worth July 7, 2022, no pet. h.).

Estate Administration

Claim Against Estate

Temporary Administrator applied to sell a parcel of Decedent’s real property. Occupants of the property claimed that they had entered into an oral contract with Decedent to purchase the property. Occupants claimed that the contract was enforceable, even though oral, because of the part performance exception – they made a sizeable down payment, made regular monthly payments, paid property taxes, carried insurance, and made repairs and improvements to the property. At trial, Occupants provided no proof of their part performance assertions. Accordingly, the trial court rejected their claim and granted Temporary Administrator’s application to sell the property. Occupants appealed.


The appellate court affirmed. The court explained that for a contract for the sale of real property to be exempted from the statute of frauds, the purchaser must pay consideration, take possession, and make valuable and permanent improvements with the seller’s consent, or even without improvements, the facts show it would be a fraud on the purchaser if the contract were not enforced. The court explained there was no proof in the record to substantiate Occupants’ claims of making payments and improvements. Mere affidavits attached to pleadings and not admitted into evidence and arguments made by their attorney at the trial were insufficient.


Moral:  Courts are reluctant to exempt parties to a real estate transaction from compliance with the statute of frauds. Thus, a party desiring to use the part performance exception must have definitive evidence admitted at the hearing of all the elements needed to qualify for the exception.