December 10, 2024
10 THINGS TO KNOW ABOUT SPECIFIC PERFORMANCE
- Specific performance is an equitable remedy designed to enforce contractual bargains by requiring a defaulting party to keep up their side of the bargain.
- It is most frequently thought of in relation to real estate deals that fail to close.
- Being an equitable remedy, the maxims of equity, such as the clean hands doctrine.
- Specific performance will only be awarded if damages are not an adequate remedy.
- The key point in proving that damages are an inadequate remedy is uniqueness. Uniqueness may be shown in the nature of the property; in its special value to the Plaintiff, or in the special nature of the transaction.
- Land used to be always considered unique, but now, not necessarily so.
- Mitigation of damages is a frequent issue in specific performance cases. If an alternative property is available, then there is often pressure to purchase it and sue for damages. Not pursuing an alternative transaction leaves you vulnerable if ultimately specific performance is not awarded. You do not have to mitigate if you obtain specific performance.
- Courts are reluctant to order specific performance where the complexity of the case might require ongoing supervision by the court.
- The obtain specific performance, you must be ready willing and able to close the transaction.
- All the usual contract and equity defences are available in a claim for specific performance – such as mistake, misrepresentation, lack of consideration, equitable estoppel, or the Statute of Frauds.
WHAT WEILERS LLP CAN DO TO HELP YOU
At Weilers LLP, we know real estate. We know litigation. We know specific performance – our counsel, Brian Babcock, teaches it as part of the remedies course at the Bora Laskin Faculty of Law.
Our real estate and commercial lawyers are adept at making sure your deal closes. But if they cannot because of the misconduct of the other side, our litigation team is ready to jump in and represent you. We also take referrals from other lawyers who may not practice in this area.
For all your commercial or real estate needs, including litigation, give us a call. We may be the right lawyers for you.