Specific Performance and Indentured Servitude

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: What happens when I prepay for work but do not receive the service requested?

A: Sitcoms often portray characters who eat at a restaurant and fail to pay, and they are forced to wash dishes or else have the police called on them. The theory is that you have stolen the items you ate. But what if you are paid for services and you fail to provide those services? Is keeping the money considered stealing? Today is the anniversary of the death of Charles Hughes, former Chief Justice of the United States Supreme Court and author of a 1911 decision that overturned an Alabama law making it a crime for a contractor not to perform services after receiving pay. In short, the Court determined that the money received and repayable constitutes a mere debt, and you cannot be jailed for your debts.

In our legal system, when you sue for breach of contract, you have the option to sue for your losses or to sue for “specific performance”, which is a court order requiring your opponent to perform his obligations under the contract. The type of obligations that can be ordered performed are typically limited to payments, signing of documents, handing over of property, or other perfunctory actions. The court can also order that an action not be taken. Courts have very limited authority and very limited desire, however, to force someone to perform anything more than the simple task of a signature or payment, because doing so could amount to the equivalent of indentured servitude. If the breach of contract was for failure to perform a service, your typical remedy is for repayment of what you paid or, perhaps, for the value of the services that you expected to receive.

While the law would say that imposing criminal liability for failure to perform or compelling performance through court order or physical abuse or threats is improper, it is nonetheless the case that we have certain criminal laws in place that will impose a punishment when property is obtained by fraudulent misrepresentations (“false pretenses”). These crimes typically apply to monetary or property transactions not involving services performed, and their application must be balanced with considerations of involuntary servitude. Interestingly, the Thirteenth Amendment of the United States Constitution, prohibiting slavery, includes an exception to allow involuntary servitude after conviction of a crime (“penal labor”).

 

The September 10th edition of “The Law” will cover guardian advocacy and protecting a developmentally disabled child as he reaches adulthood.

Questions can be submitted online to thelaw@clarkcampbell-law.com.

Title Insurance – Part 2

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: What is title insurance, and do I need to purchase it when buying a home?

A: Title insurance is essential for buyers and protects you from title issues that may not be known when you purchase. Before closing, the title company or attorney handling the transaction (known as the “closing agent”) provides a title commitment to the buyer. The commitment, based on a title search, indicates that the closing agent will issue an insurance policy assuring good, marketable title to the property. The policy insures up to the purchase price.

A title insurance policy typically protects against oddities or defects in the history of property ownership (the “chain of title”), including failure of a spouse to sign a deed conveying his or her ownership interest; long-lost heirs of previous owners claiming interest in your property; or unsatisfied or unreleased prior mortgages, taxes, judgments, or other liens. The commitment will contain exceptions limiting the buyer’s coverage. Having an attorney review the commitment prior to closing is wise.

In Florida, usually the seller pays for the “owner’s policy”, which protects the buyer. The standard form “As Is” Residential Contract for Sale and Purchase, which is the most common used in Florida, allows the seller to designate the closing agent, with the seller paying for the title search and owner’s policy.

In Florida, standard rates for title insurance are (a) $5.75 per $1,000 of coverage up to $100,000, (b) $5.00 per $1,000 from over $100,000 up to $1,000,000, (c) $2.50 per $1,000 from over $1,000,000 up to $5,000,000, (d) $2.25 per $1,000 from over $5,000,000 up to $10,000,000, and (e) $2.00 per $1,000 for over $10,000,000. For example, a seller would expect to pay a premium of $575 for an owner’s title insurance policy insuring a purchase price of $100,000. Homeowners should hold onto their policy documents after closing, because in certain circumstances, a cheaper “reissue rate” may apply if the seller can locate his prior policy.

For a general overview of the title insurance process, including the lender’s title policy, refer to our May 8, 2014 article written by real estate shareholder Michael Workman, available at theledger.com.

The August 27th edition of “The Law” will cover legal issues related to service providers, contractors, or employees who fail to do work when paid in advance.