A daughter served her father with a 30-day notice terminating his tenancy in the second-floor apartment in her New York home. Four years earlier, the father had promised to assist his daughter and son-in-law to purchase the home.

In return, she agreed that her father and late mother would be permitted to reside, for the rest of their lives, in an apartment that would be constructed in the house. In furtherance of the agreement and in reliance on her promises, father gave her $70,000, provided labor and materials for the construction of the apartment, and furnished it with appliances, carpeting, and furniture at his own expense.

He was neither required to, nor did he, pay any rent during the four years he lived there. The NewYork statute of frauds requires that interests in real property be in writing. However, the New York Supreme Court, Appellate Term, Second Department ruled that there are two exceptions to the writing requirement.

First, where there is part performance that is unequivocally referable to an oral agreement. While the mere payment of money is not enough to constitute part performance, other acts, such as taking possession or making improvements, when combined with the payment of rent, may be sufficient .

Secondly, a constructive trust may be imposed where four elements are established:

(1) a confidential or fiduciary relationship;

(2) a promise, express or implied;

(3) a transfer in reliance thereon, and;

(4) unjust enrichment.

Even without an express promise, courts have imposed a constructive trust where a promise may be implied or inferred from the transaction itself.

If you have a question about an estate planning matter in Rochester or elsewhere in WNY, please give my office a call at (716) 542-4090 or 800-729-4571 for a legal consultation.