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Transactional Real Estate: Applying Merger Doctrine to Contracts for Sale of Real Estate
July 30, 2024
Real estate partners Peter Fisch and Salvatore Gogliormella’s latest Transactional Real Estate column, “Applying Merger Doctrine to Contracts for Sale of Real Estate,” appeared in the July 30 issue of the New York Law Journal. The authors discuss the doctrine of merger by deed, under which certain terms, covenants and conditions of a contract for the sale of real property are merged with and into the deed to the property upon delivery. Taken to the extreme, this may allow for the terms of the deed to take precedence over prior terms of sale or stand alone as the sole legally enforceable obligations. As evidenced by various recent cases, New York courts have adopted an expansive scope of merger, regardless of the benefitting party. Because of this, it is important for both buyers and sellers to clearly express in the original contract any intention for a provision to survive closing in order to overcome a defense of merger by deed. Summer associate Leila Shirian assisted in the preparation of this article.
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