A real estate sales contract establishes the rights and obligations of the buyer and seller. As a result, it is important to understand what each party must do to avoid a contract breach. Otherwise, litigation may become necessary in order for you to recoup losses. In this presentation, Jimerson Birr Associate Hans C. Wahl provides a clear road-map for some of the buyer actions, seller actions and other items to consider before drafting a complaint or counter-complaint. To access the presentation, visit YouTube or click play on the embedded image below. The length of the presentation is 31:56.
General Overview Of Action
The presentation begins by talking about how the Statute of Frauds helps to establish whether a contract is enforceable. If the contract isn’t enforceable, it could be challenging to pursue an action that will win. What happens if the contract is an oral contract? What happens if the written contract is faulty? Hans explains exceptions for actions in equity through Part Performance, in the event they are applicable.
Liquidated Damages Clause
Next, he discusses Liquidated Damages, which limit the available remedies by including an enforceable clause in the contract. Also, it’s incredibly important that the court does not consider the liquidated damages clause a penalty. Furthermore, it cannot provide a unilateral election of remedies for one party, or eliminate mutuality of the parties’ obligations.
This places the public on notice about the complaint. It must be filed and recorded in the office of the clerk of the circuit court of the county where the property is located. As a result, it cannot be filed in a different jurisdiction.
Buyer Actions and Seller Actions
Actions by Seller for Damages and Actions by Buyer for Damages are detailed, following the overview. Hans uses several case examples to illustrate the concepts and what’s required to take specific actions.
Remedy For Specific Performance
Hans talks about how the buyer or seller in the contract can use this action, and what is necessary to ensure enforcement. He cites three cases which relate to this action being granted:
- Avery v. Marine Bank & Trust Co.
- Mann v. Thompson
- Vagabond Travel & Tours, Inc. v. Universal Inns of America, Inc.
After discussing the findings, he shares important information on the Witnessing Requirements for Specific Performance under Fla. Stat. 689.01.
Checklist For Complaint Preparation Due To Contract Breach
Focus on these key provisions if there is a contract breach:
- Escrow agent;
- Attorney’s fees;
- Remedy limitation;
- Liquidated damages; and
- Miscellaneous provisions.
Read your contract carefully, as individual words can make all the difference. And if in doubt, please do not hesitate to contact us and we will be glad to review the contract on your behalf.