While sellers can sue for specific performance against a buyer over a failure to perform on a real estate contract, the remedy is rarely applicable and even more rarely sought. These provisions protect the seller from a buyer’s breach by providing a simple money damages remedy, rather than a forced sale.
Is it worth suing for specific performance?
Specific performance is an equitable remedy and is used by the courts when monetary damages are not enough to remedy the legal dispute. You must prove that monetary damages are inadequate relief to compensate you for the loss.
How do you sue for specific performance?
A complaint for specific performance must allege: (a) the making of a specifically enforceable type of contract, sufficiently certain in its terms; (b) adequate consideration, and a just and reasonable contract; (c) plaintiff’s performance, tender or excuse for nonperformance of the contract; (d) defendant’s breach of …
In which circumstances would a buyer most likely sue for a specific performance?
In which circumstances would a buyer most likely sue for specific performance? The seller backed out of the original sales contract. A buyer submits an offer to a seller and then dies in a car accident. Before learning of the buyer’s death, the seller accepts the offer.
What would trigger specific performance?
Succinctly, specific performance is available when there exists: 1) a valid and binding contract; 2) definite and certain terms; 3) mutuality of obligation and remedy; 4) freedom from fraud and overreaching; and 5) lack of remedy at law. Shreeve, 65 Ariz.
When can you use specific performance?
Specific performance is a specialized remedy used by courts when no other remedy (such as money) will adequately compensate the other party. If a legal remedy will put the injured party in the position he or she would have enjoyed had the contract been fully performed, then the court will use that option instead.
How do you defend against specific performance?
Mistakes and misrepresentations in the terms of a contract might constitute a defense against specific performance. If such mistakes are sufficient to justify RESCISSION of a contract, they are sufficient to prevent the enforcement of the contract. A court will enforce only a contract with definite and certain terms.
How do you prove specific performance?
Thus, a complaint for specific performance should allege:
- The making of a specifically enforceable type of contract, sufficiently certain in its terms and with legally competent parties;
- Adequate mutual consideration;
- Just and reasonable contract;
- Plaintiff’s performance, tender, or excuse for nonperformance;
What is an example of specific performance?
Specific Performance: Overview When a contract is for the sale of a unique property, for instance, mere money damages may not remedy the purchaser’s situation. Example: Rina offers to buy Beth’s house and Beth accepts, but later decides to keep the property. Beth would be compelled to go through with the sale.
Who can enforce specific performance?
“The specific performance of a contract shall be enforced by the court subject to the provisions contained in sub-section (2) of section 11, section 14 and section 16.” Comment: The amendment in Section 10 has now reduced the discretionary jurisdiction of the Court in granting specific performance of contract.
Can a seller sue for specific performance in real estate?
CAN A SELLER SUE FOR SPECIFIC PERFORMANCE? The remedy of specific performance is definitely available under law to force a Buyer to close upon an agreed purchase. However, in real life (as opposed to the sometimes theoretical world of the law) pursuing specific performance against a Buyer is often futile.
When to pursue specific performance in real estate?
The buyer may pursue specific performance if the buyer is unwilling to carry out his or her obligations under the contract. Specific performance is allowed in real estate contracts because each parcel of land is unique and monetary damages are not adequate. The buyer must tender the purchase price in order for specific performance to be granted.
Can a specific performance claim be filed in a real estate contract?
Because the law treats each parcel of real property as unique, often a claim for damages for breach of a real estate contract is not practical. Thus, the law allows an aggrieved party to file a claim for specific performance, which requests the court to order the party breaching the contract to perform its obligations under that contract.
What happens if a specific performance lawsuit is filed?
The net effect is that the title to the property is effectively clouded by the mere filing and pendency of the suit and the seller can be effectively blackmailed into having to pay off even the most spurious specific performance lawsuit.
