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Specific Performance for Contracts Concerning the Sale of Florida Real Property

REContract

Specific performance is a method of remedy recognized in every state, as well as under federal law. Still, there are nuances in how specific performance must be asked for and proven, as well as when it will be legally awarded, which depends on specific state statutes and case law.

For Florida purposes, specific performance pursues the specific enforcement of transferring ownership of the subject property as contracted for in the underlying sales contract.  This remedy is generally available to both buyers and the sellers. However, specific performance will only be available if the contract terms are unambiguous, include the obligations of the parties, the time for performance under the contract, the method of performance, and the legal description of the subject property involved.  Brown v. Dorby, 311 So.2d 159 (Fla. 2d DCA 1075); See Also Lasseter v. Dauer, 211 So.2d 584 (Fla. 3d DCA 1968). The complaint or counterclaim in which specific performance is sought must also communicate these clear and definite terms, distinguish them in the contract, and plainly describe the property.  Cox v. La Pota, 76 So.2d 662 (Fla. 1955). All of this makes the specific performance remedy difficult to enforce when the agreement to sell real estate is an oral contract. Though not entirely impossible.  Florida courts have held that specific performance may be granted under an oral contract but only in the narrow circumstance where the buyer is already in custody of the property at the start of the buyer’s action against the seller.  Avery v. Marine Bank & Trust Co., 216 So.2d 251 (Fla. 2d DCA 1968).  Yet, even when the buyer is in possession, said possession alone will not be enough to enforce specific performance.  There must also be “other pertinent factors” besides the buyer merely possessing the subject property.  See Tate v. Jones, 16 Fla. 216 (1877) (explaining that the buyer also paid part of the purchase price); Taylor v. Mathews, 53 Fla. 776 (1907) (clarifying that the buyer also made substantial improvements to the property).

It is important to keep in mind that specific performance is discretionary with the courts.  It is not a matter of right to either party.  Thus, the court may deny this remedy even when the terms of the contract are unambiguous, and the remedy is available.  Mann v. Thompson, 100 So.2d 634 (Fla. 1st DCA 1958). Additionally, if there’s another remedy that will be adequate for that seller, then the judge may decline to grant specific performance. Under Florida law, forcing that buyer to perform can only be done by a court if there is no other “adequate remedy at law.” If the judge tries to order specific performance and the buyer can establish that other remedies were available (i.e. monetary damages), then that trial court judge will be reversed on appeal unless specific performance is an express remedy granted in the purchase contract.

If the buyer breaches the contract by walking away, the seller can sue for specific performance by asking the court to compel the transfer of the subject property to the buyer. Then, if specific performance is awarded, the seller can then recover from the buyer the full purchase price as contemplated in the contact plus any incidental damages.  Clements v. Leonard, 70 So.2d 840 (Fla. 1954).  As mentioned above, the remedy of specific performance is also available to a buyer against a seller who has breached.  Though, this remedy is only available to the buyer if the seller does indeed hold proper title to the property to convey. Miller v. Rolfe, 97 So.2d 132 (Fla. 1st DCA 1957).  If the seller feigned his or her ownership and never actually held title to the property, then they would not have title to convey through the buyer’s action for specific performance.  In that situation, the buyer’s only remedy would be to seek money damages from the seller.  Id.

Sweeney Law, P.A. has represented buyers and sellers in various specific performance matters concerning all types of real estate throughout Florida.

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Brendan A. Sweeney, Esq., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, prosecutes and defends real estate litigation matters throughout Florida. Brendan A. Sweeney, Esq., is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Super Lawyer in 2019, Florida Legal Elite in 2019, and as a Florida Super Lawyer Rising Star in 2018, 2017, 2016, 2015, and 2014. If you have any Florida real estate litigation questions and/or issues then contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights. www.sweeneylawpa.com.

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