McFerran Law has been a fixture in the legal community in the State of Washington for over 35 years. Our attorneys have significant experience representing both residential and commercial real estate clients engaging us to legally force the seller to sell certain real estate to a purchaser when the seller attempts to walk away from their contract to sell.
What is Specific Performance in Real Estate Law?
Clients in the state of Washington have a wide range of authority to act under the law. While most the parties asked the court to award them money damages, the court also has equitable power to actually legally force a party to complete a real estate transaction. By initiating a specific performance cause of action, the buyer mostly (but seller sometimes) may ask the court to legally compel or force the other party to perform its contractual obligation to either close the purchase or close the sale of the property. The non-defaulting party, in essence, will ask the court for the equitable remedy of specific performance based upon the underlying action for breach of the purchase and sale agreement
In the State of Washington these actions are a somewhat uncommon remedy pursued for both residential and commercial transactions. A robust and quickly appreciated marketplace occasions seller to attempt to breach an agreement to sell when another more favorable offer could be in play.
Specific performance is more commonly pursued in real estate transactions versus other types of business transactions as the unique nature of each piece of real estate allows a buyer to acquire that specific unique property.
Requirements for a Successful Specific Performance Action
If you are a buyer reading this article and you are seeking specific performance from your seller, then you need to know that the courts in Washington require a higher level of proof in order for the case to be successful. It is called “clear, cogent and convincing evidence”. Our attorneys are well-versed on this important criterion and will initially evaluate your case to make sure you have the legal ammunition necessary to be successful in court. That’s the first test.
If you are the buyers seeking specific performance, another key factor contributing to whether the court will grant you an award of specific performance is whether you have performed all of your obligations under the contract and remain “ready, willing and able” to purchase the property at all times. You do not have to always necessarily perform all provisions of the contract especially if the seller precluded performance in some fashion.
Our attorneys can determine and advise you on exactly what actions you should take or not take to strengthen your case. We take these matters very seriously and want to make sure that all our ducks are in a row even before we file our case with the court.
Our secret weapon is called a “Lis Pendens”. In cases where we represent the buyer we always record a Lis Pendens to give public notice to the whole world that an action is pending that literally precludes the seller from selling to anyone else until our action is resolved. It is a powerful-legal tool we always use.
Can You Get Money Damages as Well?
In any action our attorneys commence, we always ask the court for, not only specific performance, but also money damages as well. In many cases, we also asked the court to pay our attorney fees and costs. The damages are generally incidental to the decree of specific performance. The court is not limited to just specific performance. For example, the court could award a buyer reimbursement for a loan rate lock extension that the buyer pays that fee to keep their purchase money loan at the same rate while they pursue specific performance.
Examples of Specific Performance Matters
- Pursuing specific performance in a sale of a new residence by a contractor who attempted to change the plans to lower his costs.
- Successful action for specific performance of a purchase of a business opportunity and real estate from seller that would not show up for closing.
- Successful action for specific performance where seller claims various reasons to canceled the transactions none of which were uploaded by the court.
- Successful defense of an action for specific performance of the commercial property where the buyer failed to include a valid legal description blank the blank from being enforceable
- Successful detainer of a specific performance action where the real estate owner actually initialed the seller’s initials on purchase documents unknown to the seller, but known to the purchaser. Seller was blank