Whether one party to a contract has the right to force to the other party is referred to as Specific Performance.
Generally in a home sale contract, the Buyer does have the right of Specific Performance, meaning they can force the Seller to sell them the home. This is because the law sees land, or the real property, as unique. Therefore, there is no adequate substitute for it. A Seller must specifically perform the contract and sell the property to the Buyer if the contract so indicates.
What happens if the Buyer refuses to buy? Can the Seller force them to buy the property? Here, the damages are really monetary in nature. The Seller was expecting to get paid a certain mount of money, and now the Buyer is backing out. In this situation, the contract may give the Seller the right to keep the earnest money. Earnest money is the amount of money the Buyer puts down in the event they breach the contract. Alternatively if the contract allows for it, the Seller can sue the Buyer for other monetary damages.
We have not seen residential real estate contracts that give the right of Specific Performance to the Seller, allowing them to force the Buyer to buy the property. That is not to say such contracts do not exist. If they do, however, we do now know if such a right is enforceable.
When a Buyer considers walking away from a deal, the Seller faces a financial loss. In these circumstances, the Seller, their agent, and likely their attorney will exert significant pressure on the Buyer, and may even threaten litigation, in order to compel the Buyer to go forward with the deal.
Buyers in these situations should recognize there is a danger that if they breach the contract, they may be responsible for the Seller’s legal fees if litigation ensues and the Buyer loses.
If you are considering breaching a real estate contract, or believe the other side has breached, we strongly advise seeking legal advice prior to doing so. We assist numerous clients in similar situations. Please contact us at 314.862.227 or email: mjacob@marcjacobesq.com
