Specific Performance and Real Estate Contracts

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In most cases, when someone breaches a contract, the injured party can sue for money. However, in some cases, money isn’t enough to make the injured party whole – in these cases, the injured party can sue for specific performance. When you sue for specific performance, you are asking the court to order the other party to meet the terms of the contract.

Specific Performance and Real Estate Transactions

Courts only use specific performance when no other remedy can make the injured party whole. Because real estate – the subject of the contract – is unique, often money is not enough to make someone whole – to put that person into a position that he or she was in prior to the breach. Because of the uniqueness of real estate, often, money is not enough because the purchaser may not find another piece of real estate in his or her preferred location that meets his wants and / or needs. If the seller backs out of the contract and the purchaser wants the property, the purchaser can sue for specific performance of a contract, and the purchaser will be compelled to close on the property.

Replevin

If you are sued for specific performance, you might also see the term “replevin,” which is “claim and delivery,” or the transfer of goods. Some states use specific performance replevin interchangeably; however, it is usually used in UCC claims for goods identified in a contract. Replevin is also used when cash damages are not enough to make the injured party whole again.

Specific Performance and Contracts

The only way a court will enforce specific performance is if the contract is fair and equitable. For example, you signed a purchase agreement to buy a house for $150,000, the value of the home is $400,000, and it needs about $50,000 in repairs, including labor. The seller realizes he priced the home too low upon bad advice from a real estate agent and tries to back out of the deal. The court may not enforce specific performance.

Colorado Revised Statutes Annotated provides specific performance as a remedy for contract subjects, such as real estate, that are unique or “in other proper circumstances.” The court could order payment, damages and other relief that is fair and reasonable, in addition to ordering the seller to go through with the contract. Other relief sometimes includes the buyer’s attorneys’ fees and costs.

When purchasing or selling real estate, you should at least have a real estate agent involved in the transaction, and, as soon as you believe you might have problems with the contract, contact a contract attorney. Your real estate agent can often refer you to an attorney if you do not have a contract attorney that you usually use.