At closing, an escrow agent is given the necessary parts of the deal to complete the purchase. First, the buyer puts the purchase price forward along with the promissory loan. Second, the bank advances the mortgage and the loan. Finally, the seller delivers the deed.

The Deed

The deed requires actual delivery which means that there is the intent to deliver at the time of delivery.

Rosengrant v. Rosengrant

629 P.2d 800 (Ok. Ct. App. 1981).

Jay Rosengrant is the defendant while his brother is the plaintiff. Jay lost and appealed.


Was there legal delivery?


Legal delivery requires actual delivery with the intent to deliver at the time of the transfer. This is the same rule as a inter vivos gift.


There was no valid delivery and thus the deed is void. Affirmed.


Jay had an elderly aunt and uncle who owned a farm. Both the aunt and uncle became ill and were about to pass. Before their passing, Jay’s uncle called Jay to the bank with him. At the bank, the uncle delivered the farm to Jay but said that it would go into the record at the aunt and uncle’s death.

Once the aunt and uncle died, Jay went to put the deed into the record, which was done. Jay’s brother than filed a petition to remove the deed from the record and void the deed because the delivery was not valid.


There was no actual delivery here. The attempt to make an appearance of delivery in the present for an actual delivery in the future does not qualify as valid. Instead, because this was a delivery with the intent to deliver in the future, there was no valid delivery and the deed is void. This is further evidenced by the fact that Jay was the only surviving person who could testify of the events of the day and that the envelope containing the deed said that either the uncle or Jay the uncle could claim the deed.

Additional Notes

If this is a valid delivery, then Jay takes possession. If this is not a valid delivery, then the property will be divided according to the will or intestate succession.

Delivery requires two parts

  1. Donative intent
  2. Immediate delivery with an objective method of transfer.

Here, there was donative intent: there is no doubt the aunt and uncle wanted Jay to have the property. However, the transfer did not give immediate transfer of control. For example, the uncle could claim the deed anytime during his life, the uncle was paying taxes on the land, make attempts to sell the property. In other words, the intent was to transfer the deed in the future.

Remedy for Breach

Courts generally disfavor specific performance. However, specific performance may be a remedy for breach if damages are inadequate. Often, real property is unique, often creating a cause for specific performance. However, sometimes real property is not unique. In these instances, when is specific performance necessary?

Giannini v. First Nat’l Bank of Des Plaines

483 N.E.2d 924 (Ill. App. 1985).

Giannini is the plaintiff, seeking specific performance. His claims were dismissed at trial and he appeals.


Is specific performance appropriate?


Specific performance may be necessary to remedy a breach of contract if other remedies are inadequate.


Specific performance is necessary in this instance.


Giannini had made a contract to purchase a condo once it was built. However, the company was about to foreclose and sold their interest in the property to the Bank. Instead of developing the land into a condo as promised, the land was to be utilized as a rental property. As such, Giannini sued for specific performance so his unit would be a condo. The trial court dismissed saying:

  1. There was no condo in existence.
  2. The remedy would be economically disadvantageous to the Bank.
  3. The remedy would be cumbersome because it would require the court to oversee a conversion.

The arguments presented by the bank and the trial court are unpersuasive. First, the condo is in existence. In other words, the property is physically there but the bank simply refused to call the unit a condo. As such, the argument fails. Second, the bank argues that the condo is not unique. There are other units similar to the one Giannini wants. However, the court says that there is no evidence showing just how similar the units are. Finally, because the bank agreed to accept the original building plans, they are not able to back out of the agreement now simply because the agreement causes financial hardship.

Note that other methods of remedy include damages and rescission.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Spring, Property

Will Laursen

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