December 17, 2024

By Nick Melchiorre 

When we write or talk about specific performance (the action to obtain a judgment enforcing a contract of sale) we typically are talking about buyers who want to obtain a property they consider to be unique.

Specific performance is usually only available when money damages would not be an adequate remedy.

THE ISSUE

But can sellers obtain specific performance? After all, they normally only want money, and money is great, but hardly unique.

The short answer is “YES”.

Successful actions by sellers are rare, but the courts recognize that “transactional uniqueness” may be sufficient to satisfy the uniqueness requirement.

THE CASE

In Matthew Brady Self Storage Corporation v. InStorage Limited Partnership the seller had built a commercial storage facility to the specifications of the buyer. Then the buyer refused to close the purchase. There was evidence that the value of the transaction depending upon the buyer’s unique needs, and that finding another buyer at the same price would be unlikely. A sale at any price would be difficult to arrange. The seller would not have bought the property and done the renovations without believing that the buyer would go through with the deal.

The case was sufficient for the Ontario Court of Appeal to agree with the trial judge that monetary damages would not adequately compensate the seller based upon the concept of transactional uniqueness.

TAKEAWAYS

• Specific performance to benefit sellers will remain rare.
• It is available in the rare cases where “transactional uniqueness” makes monetary damages inadequate to properly compensate the seller,
• The issue of mitigation of damages will always be central to these cases.

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.