29 Nov The Ins and Outs of Specific Performance
In a perfect world, a real estate transaction goes off without a hitch, and both the seller and buyer conclude business feeling content.
In the real real estate world, this doesn’t always happen. You can always expect a few bumps along the way, but when one of the parties is literally and legally not living up to their end of the bargain, it can become a matter of “specific performance.”
Below, we discuss what this means and the circumstances under which a court enforces it.
What is Specific Performance?
Specific performance is the order of the court to perform the obligations of a binding contract.
In residential real estate, when a party to a real estate contract breaches it by improperly or not performing its terms, the harmed party may be entitled to specific performance. This means that the non-breaching party sues to force the opposing party to perform the tasks and obligations specifically mentioned in the contract.
Breach of a Valid and Binding Contract
The first condition for specific performance is that a valid, written contract exists which legally binds the home seller and the home buyer to a deal.
The three basic elements required to form a contract, i.e., an offer, acceptance, and consideration, must be there. If the parties have entered into such a contract and it’s breached, the court may order specific performance provided monetary compensation is inadequate.
When Does a Court Order Specific Performance?
The Home Seller Defaults
If a seller is not able to comply with the terms of the contract or is unwilling to do so, the court may order specific performance on the basis that all pieces of land are unique, and monetary compensation might be inadequate to fairly compensate the buyer.
To the contrary, for instance, should the seller default by failing to disclose defects found in the actual property or the area of the land is found to be smaller than promised, a reduction in the purchase price may be an appropriate remedy rather than specific performance.
The Home Buyer Defaults
If a home buyer is not able to comply with the terms of the contract or decides to back out of the deal, the court may order specific performance. However, it is rarely granted to sellers as monetary compensation is usually adequate.
The bottom line is that only an experienced real estate attorney can provide the best professional guidance should you find yourself in a specific performance situation.