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The Remedy of Specific Performance for the Breach of a Real Estate Sales Contract
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The Remedy of Specific Performance for the Breach of a Real Estate Sales Contract

August 1, 2014 Real Estate Development, Sales and Leasing Industry Legal Blog

Reading Time: 4 minutes

Our recent Blog posts on real estate law have discussed the claims a seller of property can bring against a buyer who breaches a real estate sales contract and also the claims a buyer may bring against the seller when a breach has occurred.  One post has also covered the seller’s disclosure obligations when entering into a real estate sales contract.  These posts have peripherally mentioned the remedy of specific performance without giving much additional detail.  This post will delve further into this remedy and discuss when specific performance is available to a buyer or seller when the other party has breached the real estate sales contract.

Specific performance is a remedy that seeks the specific enforcement of transferring ownership of the subject property as contracted for in the underlying sales contract.  This remedy is available to both the buyer and the seller; however, specific performance will only be available if the contract contains terms that are clear, definite and certain.  Brown v. Dorby, 311 So.2d 159 (Fla. 2d DCA 1075).  More precisely, the contract terms that must be unambiguous include the obligations of the parties, the time for performance under the contract, the method of performance, and the legal description of the subject property involved.  See Id.; Lasseter v. Dauer, 211 So.2d 584 (Fla. 3d DCA 1968).  The complaint or counterclaim in which specific performance is sought must also articulate these clear and definite terms, identify them in the contract, and clearly describe the property.  Cox v. La Pota, 76 So.2d 662 (Fla. 1955).

This would make the specific performance remedy difficult to enforce when the agreement to sell real estate is an oral contract, but the remedy isn’t impossible in that situation.  Florida courts have held that specific performance may be granted under an oral contract but only in the limited circumstance where the buyer is already in possession of the property at the commencement of the buyer’s action against the seller.  Avery v. Marine Bank & Trust Co., 216 So.2d 251 (Fla. 2d DCA 1968).  Yet even when the buyer is in possession, possession alone is not enough to enforce this remedy.  There must also exist “other pertinent factors” besides the buyer merely possessing the subject property.  See Tate v. Jones, 16 Fla. 216 (1877) (explaining that the buyer also paid part of the purchase price); Taylor v. Mathews, 53 Fla. 776 (1907) (clarifying that the buyer also made substantial improvements to the property).

If the buyer breaches the contract by walking away, the seller can sue for specific performance by asking the court to compel the transfer of the subject property to the buyer.  If awarded, the seller can then recover from the buyer the full purchase price as contemplated in the contact plus any incidental damages.  Clements v. Leonard, 70 So.2d 840 (Fla. 1954).  As previously mentioned, the buyer can also seek specific performance as a remedy against a seller who has breached.  However, this remedy is only available to the buyer if the seller does indeed hold proper title to the property to convey.  See Miller v. Rolfe, 97 So.2d 132 (Fla. 1st DCA 1957).  This only makes sense.  If the seller misrepresented his or her ownership and never held title in the first place, then he or she would not have title to convey through the buyer’s action for specific performance.  In that situation, the buyer’s only remedy would be to seek money damages from the seller.  Id.

It is important to keep in mind that specific performance is discretionary with the courts.  It is not a matter of right to either party.  Thus, the court may deny this remedy even when the terms of the contract are unambiguous and the remedy is available.  Mann v. Thompson, 100 So.2d 634 (Fla. 1st DCA 1958).

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