Hurtubise v. McPherson

Massachusetts Appeals Court · 2011 · Property

80 Mass. App. Ct. 186 (2011)

Updated July 23, 2026

PropertyStatute of FraudsSpecific PerformanceOral Land ContractsIndefinitenessoral land swapequitable estoppelreasonable reliance

Facts

Hurtubise and McPherson owned adjoining land, and Hurtubise needed additional land from McPherson to build a storage shed that would comply with local setback requirements. Hurtubise proposed exchanging part of the front of his property for the portion of McPherson's land needed for the shed, and McPherson agreed by handshake. Hurtubise then obtained a building permit, excavated, and constructed a 300-by-thirty-foot storage shed at a cost of $39,690 while McPherson observed the work for seven to eight weeks without objection. After construction, McPherson objected to the plan showing the shed extended about ten feet onto his lot, demanded $250,000, notified the town of the encroachment, and Hurtubise sued for specific performance when the permit was revoked and demolition was threatened.

Issue

May a court specifically enforce an oral agreement to exchange land notwithstanding the Statute of Frauds where one party reasonably relied by constructing a building while the other silently observed, and was the agreement sufficiently definite even though the exact parcel dimensions and boundaries were not fixed at the outset?

Rule

Although the Statute of Frauds generally bars enforcement of an oral contract for the sale or conveyance of land, such an agreement may be specifically enforced if the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party to be charged, has so changed position that injustice can be avoided only by specific enforcement. Contract terms must be sufficiently definite to ascertain the parties' obligations, but a contract remains enforceable if its meaning can be determined with reasonable certainty from the transaction and surrounding circumstances; indefiniteness defeats enforcement only when construction becomes futile.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Worcester, Nina Calder and her neighbor Leo Mercer orally agree that Leo will convey Nina a narrow strip of his lot so she can place an addition in compliance with local setbacks, and Nina will deed Leo an equal-sized strip along her driveway. Nina then obtains permits and spends $85,000 building the addition while Leo walks past the site several times each week for two months without objecting. After completion, Leo refuses to convey and invokes the Statute of Frauds.

If Nina sues for specific performance of the oral exchange, which is the strongest basis for enforcement?

Explanation. The majority held that an oral land-conveyance agreement may be specifically enforced despite the Statute of Frauds when the plaintiff, in reasonable reliance on the contract and on the continuing assent of the defendant, so changes position that injustice can be avoided only by specific enforcement. Silent acquiescence during substantial, visible construction is evidence of continuing assent. The other choices overstate the rule or incorrectly eliminate the Statute of Frauds.