What is specific performance?

Specific performance is a remedy sought in civil court in lieu of money. It is often used in contracts for the sale of land, but it can apply in other circumstances as well. When money isn't adequate to compensate a plaintiff for his loss, the plaintiff may seek specific performance. When a court grants specific performance, the defendant is required to do whatever is promised.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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Specific performance is a remedy sought in civil court, in lieu of financial penalties or rewards. It requires a defendant to fulfill a commitment instead of just paying money for not keeping his promise. Specific performance is referred to under the law as an “equitable” remedy.

What Do You Need to Know about Specific Performance?

In the vast majority of civil suits, the plaintiff is seeking money damages or monetary damages. For example, if someone commits a breach of contract, the person who suffered the breach usually sues to try to recoup the money they lost because the defendant didn’t keep their part of the bargain. However, while money works in most lawsuit cases, sometimes money is not enough. When money isn’t adequate to compensate a plaintiff for their loss, then the plaintiff may seek specific performance. When a court grants it as a form of equitable remedy, the defendant has to do whatever they originally promised.

This legal remedy is used when the plaintiff demonstrates that money will not make them “whole” from the breach. For example, if a plaintiff had a contract to buy a one-of-a-kind necklace and the defendant failed to deliver, then the court ordering the defendant to pay back the plaintiff’s money may not be sufficient. They will have the cash, but won’t be able to find another one-of-a-kind item to buy with it. The plaintiff in that case could ask the court to make the defendant sell them the necklace. The defendant would, of course, keep the plaintiff’s money and be required to follow through and complete the sale as promised.

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How Does Specific Performance Work with Real Property?

Specific performance can be used in contracts for the sale of land. Specifically, if you have a pending purchase contract and the buyer changes their mind, the seller could sue to make them complete the transaction.

In any purchase contract, both buyer and seller are given set opportunities to drop out. For example, if the appraisal comes in low, the contract would dictate the point at which the parties would have to renegotiate the price and when the buyer could cancel the contract. It’s increasingly common for buyers to agree to pay out of pocket a certain amount if the appraisal comes in low.

Similarly, if buyer or seller don’t meet certain obligations by a set date, the other party can cancel the contract. In competitive markets, specific performance in relation to real estate sales are less common. The seller has to ask essentially if they would get a better sales price by going back to market.

Can the Buyer in Real Estate Transactions Sue for Specific Performance?

We think of the seller suing a buyer to complete a real property purchase in real estate contracts. A buyer has the option under some circumstances to sue as well. Contracting parties on both sides need to meet their commitments. In a competitive market, a seller may try to back out if they think they’ll get a better offer from another party. If they breach the existing contract, the buyer can sue to complete the sale.

The buyer and non-breaching party must prove they have a binding contract first. An enforceable contract has to meet certain requirements depending on the state you’re in. They must also prove they are both ready and able to fulfill the contract within the original parameters. Depending on the case, the courts may award additional money damages on top of the actual performance. This could include earnest money or other payments.

If you believe that this remedy may be the best and fairest remedy for your situation, you should consult with a lawyer to explore your options for suing for specific performance.

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