issues in suit for specific performance

Romance is an associate with Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A., in Miami and West Palm Beach, where he concentrates in trial and appellate practice, specializing in commercial litigation including real estate litigation. No title defect would appear of record, so the seller should then be able to find a buyer without knowledge of the pending specific performance claim. 2d 1347 (Fla. 3d D.C.A. ‘To inculcate in its members the principles of duty and service to the public, to improve the administration of justice, and to advance the science of jurisprudence.’ That, however, is not likely to be the case because the buyer, to be secure in title (meaning superior to all others), must be a bona fide purchaser without notice of the pending action and the possibility that the seller may be obligated, through the loss of a specific performance suit, to convey title to another earlier contracting party. © 2020 The Florida Bar. It is also possible that by the seller and seller’s attorney even having notice of a threatened specific performance action marketability of the property is at risk.13 In any event, Florida courts have held that the pendency of a lawsuit seeking specific performance of property makes the title to the property unmarketable14 and the threat of legal blackmail exists. Specific per… Although both buyer and seller retain the power to bring a specific performance claim if one believes the other to be in breach of the purchase and sale contract, the buyer has the power to tie up the seller’s property because, in most cases, the seller cannot sell the property once the buyer files a claim for specific performance. Such claims are common. Within the allotted time period, the owner elected not to proceed in what was an ambiguous contract coupled with a bad bargain. Alternatively, greater responsibility must be placed upon the seller’s attorney to include provisions in the contract to protect the seller. Where a … 6 Hollywood Mall, Inc. v. Capozzi, 545 So. 2d 512 (Fla. 5th D.C.A. Hence you won't get a judge to … Hence, the statement of a cause of action in a suit for specific performance calls for two kinds of allegations: those that establish the right to recover for breach of contract, as well as those that are … The latter remedy is specific performance. At first blush, it would seem that a seller who has had a lis pendens dissolved while a specific performance suit is pending should simply be able to seek out an uninformed buyer and close the transaction without revealing to the buyer or the buyer’s attorney the pendency of the lawsuit for specific performance. 1991). Gerald F. Richman is board certified in both civil trial and business litigation. The period of limitation for a suit for specific performance of a contract is three years and the time of limitation starts to run from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. To explore t… Another issue arose whether, in absence of permission granted by the trial court at the time of withdrawing the previous suit in which permanent injunction was claimed, the plaintiff can file a fresh suit where specific performance will be claimed. Later, when a suit for specific performance was filed, the defendant objected to it, invoking Order 2 Rule 2, which states that the relief of specific performance … Understanding Specific Performance In the vast majority of civil suits, the plaintiff is seeking cash, known as monetary damages. (1) No action for specific performance of a real estate contract may be maintained against an owner of real property unless: All of the TREC-promulgated purchase contract forms expressly provide the remedy of Specific Performance in their provisions related to “Default” (see below). The appeals process can add an additional year or more to resolve a claim. The seller again faced the prospect of a drastic downturn in the market, had lost a year and a half of rent, and had to absorb the real estate taxes and utility bills. 14 Chafetz v. Price, 385 So. 2d 479 (Fla. 5th D.C.A. One solution lies in the freedom to contract, where the seller could insert a clause in the sale contract that as a condition precedent to filing a suit for specific performance, the buyer would be required to deposit in an interest-bearing escrow account the full amount of the purchase price, plus a reasonable sum to reimburse the seller for attorneys’ fees and costs in the event the seller prevails. Even where a contract to purchase specifically provides that a good and marketable title of record is not required, the seller’s failure to disclose the pendency of a known claim to title may subject the seller to liability in tort. Is what can sellers reasonably do to protect themselves, and what possible legislative remedies are there for what is clearly an inequitable situation that easily lends itself to egregious abuse. Under contract, the buyer had the right to extend the closing date for three 30-day periods by paying a $25,000 “extension fee” by a specified date for each extension. For example, if someone breaches a contract, the person who suffered the breach usually sues to try to recoup the money he lost because the defendant didn’t keep his part of the bargain. A party to a contract who is damaged because the contract is breached by another party has the option to file a suit for specific performance compelling to perform his … §48.23(3). The doctrine of mutuality of obligation requires a contract to provide that at least some of the terms may be enforced by one party against the other.16 Under Florida law, mutuality of obligation is essential to constitute a valid contract.17. 3 In its order denying the seller’s motion for summary judgment, the court found that a factual issue existed, holding “whether [seller’s] acceptance of prior late payments constitutes a waiver clearly impacts upon the ultimate issue of whether [seller] breached the Contract by refusing to close.” 4 Muhtar v. Goldman, 419 So. While it is true that a timeshare contract is a binding legal document, it is often mistakenly thought that such a contract cannot only be cancelled. There's no one fix to all performance problems. Notably, the remedy is granted to both Buyers and Sellers, so either party may bring a suit for specific performance if … Chiusolo v. Kennedy, 614 So. SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT-PRACTICAL PROBLEMS INTRODUCTORY The trial court found in an extensive opinion that the buyer’s president had repeatedly lied to the seller and others; that there was no waiver; that the buyer was never ready, willing, and able to close; and that there was no equitable basis for the relief sought by the buyer. This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Bruce M. Stone, chair, and Brian Sparks and William Sklar, editors. The law as it exists today affords an unable buyer the power to force the unwary seller to settle a frivolous claim. Specific Performance is mostly sought in case of a breach of contract resulting in damages or losses for one of the parties to the contract. The court may impose such terms for the extension of time as justice requires. Given the fact that not all sellers, particularly in residential sales, have the services of experienced and competent attorneys, the best answer lies in fairly drawn remedial legislation since the doctrine of caveat venditor is not sufficient. Because the law treats each parcel of real property as unique, often a claim for damages for breach of a real estate contract is not practical. Instead of compensation in lieu of the losses accrued, the aggrieved party may approach the Court in order to enforce a specific part of the contract. 1990). Sparks v. Charles Wayne Group, 568 So. 12 Failure to disclose a known material fact to an opposing attorney or party in connection with the sale of land would violate Rule 4-8.4(c) of the Rules Regulating The Florida Bar (Rules of Professional Conduct), which prohibits a lawyer from engaging “in conduct involving dishonesty, fraud, deceit, or misrepresentation,” and may thus subject the attorney to Bar discipline. In order to maintain a lis pendens, the party seeking the lis pendens must post a bond unless the lis pendens is based on a duly recorded instrument. (b) the claimant alleges (in a sworn complaint) that it had the financial ability to perform under the contract and attaches to the initial pleading evidence of its financial ability at the time of the alleged default. (2) Where an action for specific performance that does not comply with section (1) is filed, the court upon motion of defendant shall hold an immediate hearing where the claimant shall be required to both show cause why the requirements of section (1) have not been complied with and establish the likelihood of success on the merits of its claim. One solution lies in the freedom to contract, where the seller could insert a clause in the sale contract that as a condition precedent to filing a suit for specific performance, the buyer would be required to deposit in an interest-bearing escrow account the full amount of the purchase price, plus a reasonable sum to reimburse the seller for attorneys’ fees and costs in the event the seller prevails. (a) the claimant at the time of filing posts a bond equivalent to 30% of the purchase price to be held by the court to provide seller with damages caused by the filing of the action; and In a suit for specific performance, when there are conflicting rights of parties namely, that of the agreement holder and the subsequent purchaser, what relief, the agreement holder should seek, apart from the relief of specific performance of sale agreement? In this video lecture we'll learn how to file a suit for specific performance of a contract or an agreement and related legal issues. Giving suit for specific performance is solely at the court's discretion, and the party can't demand it as their matter of right. §48.23 provides the procedures to be followed in obtaining a lis pendens. With regard to the final extension, the buyer informed the seller of its intent to seek an extension and make the required payment. (2) No notice of lis pendens is effectual for any purpose beyond 1 year from the commencement of the action unless the relief sought is disclosed by the initial pleading to be founded on a duly recorded instrument or on a lien claimed under part I of chapter 713 against the property involved, except when the court extends the time on reasonable notice and for good cause. Enter., Inc. v. Murphy, 575 So. Knowing of the existence of a specific performance suit, which could affect title, the seller’s attorney is ethically obligated to inform both the buyer’s attorney and the title company of the pendency of the suit.12 Thus, as a practical matter, the buyer becomes informed of the existence of the lawsuit; the buyer is deprived of bona fide without notice purchaser status, and the title company will not provide title insurance. This article discusses the legal and practical problems with representing a seller of property confronted with the possibility of being effectively “blackmailed” into settling frivolous claims for breach of a real estate sales contract. 44 Fla. Jur. Practical Problems With Reducing Losses. The action is usually one that has been previously detailed in a contract. The statute provides: “(1)(a) No action in any of the state or federal courts in this state operates as a lis pendens on any real or personal property involved therein or to be affected thereby until a notice of the commencement of the action is recorded in the office of the clerk of the circuit court of the county where the property is, which notice contains the names of the parties, the time of institution of the action, the name of the court in which it is pending, a description of the property involved or to be affected, and a statement of the relief sought as to the property. Two recent unreported trial court decisions illustrate the point that a specific performance lawsuit can result in legal blackmail. 11 Arguably, a claim for fraudulent inducement lies just as where a broker fails to disclose a material fact as to the physi cal condition of the property. denied, 96 S.Ct. In one case, the buyer and seller entered into a purchase and sale contract for an unimproved parcel of property to be purchased in four phases for $12,000,000. 2 To support its waiver argument, the buyer relied on Mark v. Hahn, 177 So. Just as no two problems are exactly the same, there is no silver bullet, no one best way of fixing them. 10 Mohican Valley, Inc. v. MacDonald, 443 So. The period of limitation for a suit for specific performance of a contract is three years and the time of limitation starts to run from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. Alternatively, the buyer could be required to post a bond or letter of credit payable to the seller in the event the seller prevails, in a sum equivalent to the purchase price of the property plus a reasonable amount for attorneys’ fees and costs. Thus, the law allows an aggrieved party to file a claim for specific performance, which requests the court to order the party breaching the contract to perform its obligations under that contract. 2d 1238 (Fla. 1996) (where the Florida Supreme Court held that the economic loss rule does not bar a common law fraud in the inducement action.) This misconception is perpetuated by timeshare companies and user groups that are funded, maintained and controlled by the timeshare industry. It encompasses the idea that all parties to a contract are bound by the exact terms stated in that contract and that there are remedies that a wronged party can pursue when someone is in breach of those terms. Specific performance is an alternative to a courts decision to award damages and it is commonly used as injunctive relief in cases involving real property or the disclosure of confidential information. Buyer’s Suing for Specific Performance The buyer may pursue specific performance if the seller is unwilling to carry out his or her obligations under the contract. from George Washington University in 1990 and his J.D. A suit for specific performance can be filed by any party, in a court of competent jurisdiction, who has suffered loss due to non-performance of contract on part of the other party to the contract. In the event said notice of lis pendens is discharged by order of the court, the same shall not in any way affect the validity of any unrecorded interest or lien. The tenant responded with a counterclaim for specific performance that tied up the property for over a year even after a settlement agreement was reached requiring the tenant to leave the premises. (b) Except for the interest of persons in possession or easements of use, the filing for record of such notice of lis pendens shall constitute a bar to the enforcement against the property described in said notice of lis pendens of all interests and liens including but not limited to federal tax liens and levies, unrecorded at the time of filing for record such notice of lis pendens unless the holder of any such unrecorded interest or lien shall intervene in such proceedings within 20 days after the filing and recording of said notice of lis pendens. Alternatively, the law could provide that the seller be entitled to an immediate hearing, at which time the plaintiff/buyer would be required, under the standards for injunctive relief, to establish the likelihood that the buyer would prevail on the merits. Other items courts agree that support specific performance is custom-made products, works of art, and goods that are in short supply. If the buyer is successful in its specific performance claim, the court typically orders the seller to convey title in accordance with the terms of the contract. In effect, this can be a form of “legal blackmail.”. On the eve of the agreed-upon scheduled departure the tenant filed for bankruptcy, which deprived the state court of jurisdiction to enforce the settlement and evict the tenant. Conclusion s; the solution is relatively simple. 1982). 2d 237 (Fla. 1st D.C.A. A contractual remedy, however, does not protect the unwary and unsophisticated seller. See HTP, Ltd. v. Lineas Aereas Costariccenses, S.A., 685 So. Other commodities that courts have found to support specific performance include works of art, custom-made products, and goods in short supply. 1 See Fla. Stat. He is president of Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A., with offices in West Palm Beach and Miami, where his practice is complex commercial litigation, such as contracts, securities, antitrust, real estate, class actions, civil fraud, RICO, and other business torts. When you sue for breach of contract, you can generally sue for money compensation. Mark A. 2d 5 (Fla. 1965); and McNeal v. Marco Bay Assoc., 492 So. One could argue that the seller, facing a spurious lawsuit for specific performance, could simply invoke the doctrine of caveat emptor and remain silent regarding the specific performance suit. 782 (1975). This is not an atypical situation. From Key Media, the world’s #1 global mortgage business publisher. On the date of the scheduled closing, with no extension having been granted, the buyer informed the seller that it did not have the money and stated that it was “all over.” Later that day the buyer surprisingly informed the seller by fax that the “check is in the mail.” The buyer never sent the extension fee. The answer lies in creating a fair balance between the important right of a real estate buyer who has been the victim of a breach of contract to have access to the courts without that right of access being unreasonably chilled, and the right of a seller to be protected against a cloud for specific performance being placed upon the property by a buyer who merely alleges the elements of a specific performance suit but has few real facts to support it. Should a party default on his obligation, a court may issue an order for specific performance, requiring a party to perform a particular action. Evidence Act, 1872 – Section 101 – Burden of Proof – Suit for Specific Performance – Readiness and Willingness – How to succeed in a suit for specific performance – It is the plaintiff to prove that he was always been ready and willing to perform his part of contract and he should necessarily step into the witness box to give evidence. Specific performance is a remedy for breach of contract which is most often used in transactions involving land and construction work. The theory is that there're many buyers for a given property, but there may be only one "dream home" for a buyer. 15 See, e.g., Lawyers’ Title Guaranty Fund, Title Notes, §10.05.01 (“Based on the Fund’s insuring and claim experience since its creation, a definite general policy has been established against approving policies in any case where The Fund or Fund Agent has actual knowledge of a definite adverse claim, even though it is not of record. An alternative contract solution would be for the seller to specifically exclude the remedy of specific performance. 1980). The practical reality is that once the lawsuit is filed, the property cannot then be sold to another buyer. Specific performance is the legal concept that anyone who signs a contract is bound to the terms of the contract. Section 10 of the Specific Relief Act, 1963 , states “ Cases in which specific performance of contract enforceable. 1991). A common misconception is that title to property is not clouded by the filing of a lawsuit unless it is accompanied by a lis pendens.7 The fiction is that a lis pendens is necessary to give notice to the world of the existence of a suit.8 Many serious legal battles involve trying to dissolve a lis pendens or to force the party filing the lis pendens to post a substantial bond.9 The lis pendens statute requires a claimant to post a bond when the lis pendens places a cloud on title that did not previously exist.10 It would seem to follow that once having succeeded in dissolving a lis pendens, the property owner then should be free to convey title. While a lis pendens is simply a notice of pending litigation, the effect thereof on the owner of property is to constrain its right to convey title.) 9 Fla. Stat. 5 R.P.M. As one might expect, the buyer was a shell corporation with a substantial amount of debts and little in the way of assets. Under current law, courts grant specific performance when they perceive that damages will be inadequate compensation. Aside from the possibility of a suit for fraudulent inducement by virtue of the alleged failure to disclose a material fact,11 and aside from issues as to whether caveat emptor applies, a more practical barrier exists: the duty of the seller’s attorney. On a motion to dissolve the lis pendens, the court ruled that the initial pleading did not show that the action was “founded on a duly recorded instrument” as required by statute to maintain the lis pendens, and that a bond would be required.1 The court dissolved the lis pendens after the buyer advised the court that it had no intention of posting a bond. These remedies include filing a lawsuit to collect damages or seeking a court order requiring the infringing party to live up to their obligations. Remedy of specific performance which is affected in case of breach of contracts is provided by the equity courts. Courts will enforce specific performance only if the underlying contract was fair and equitable. Upon such showing, the buyer then would be required to post a reasonable bond to be established by the court to protect the seller against costs and expenses of defending the lawsuit, as well as the reasonable damages expected from the carrying costs of the property and the seller’s inability to convey the property during the pendency of the lawsuit. Mr. Richman is a graduate of the University of Florida with bachelor of building construction and J.D. Almost all states have now adopted the UCC, or Uniform Commercial Code. This power has the practical effect of allowing the buyer to use the legal system to “blackmail” the seller into either conveying title to the property at a price agreeable to the buyer, or forcing the seller to pay off the buyer to drop buyer’s claim and allow the seller to convey the property to a third party. 2d 732 (Fla.), cert. In fact, the Florida Supreme Court stated that the bond requirement contained in the lis pendens statute exists merely to permit property holders to protect themselves from irreparable harm. This conduct can be characterized as “legal blackmail.”. Specific performance is deemed an extraordinary remedy, awarded at the court’s discretion Sections 9-25 deal with specific performance of contracts: Basic rules. Such a model statute could be the following: 2d 491 (Fla. 1993). In the typical case in which a lis pendens is based on a claim for specific performance of a real estate contract, there is no duly recorded instrument already clouding title because the contract is rarely recorded. What is Specific Performance? The Many Ways to Be Relieved of Your Timeshare Obligations, Straight Up with Jocelyn Predovich: The Truth about FHA 203k Loans. What Does Specific Performance Mean? However, the buyer took the position that the seller had not properly terminated the contract, refused to leave the premises, and the owner was forced to sue for eviction. 2d 383 (Fla. 3d D.C.A. The term specific performance refers to literal performance of ones obligations under a contract. The buyer, as was established at trial, had not been able to obtain financing and could not possibly have closed. In fact, it is more likely than not that a lis pendens is not maintained on a property throughout the course of a specific performance lawsuit. degrees and past president of The Florida Bar. Although a title insurance company theoretically could issue a policy with an exception for an unrecorded interest in property of which it is aware, such as the existence of a specific performance lawsuit involving the property, such a practice is prohibited by most title insurance companies because they might then become involved in the practice of “buying a lawsuit.”15. Were the seller to convey title to a new buyer, the court would be faced with the possibility of ordering the new buyer to convey to the seller, or to determine an amount of damages sufficient to compensate the successful buyer. Regardless of the appraisal of the merits of such claim, The Fund does not feel justified in buying possible litigation.”) 16 Wilson v. Sandstrom, 317 So. While the buyer had little to lose other than its own expense of litigation, the seller was burdened with the risk of the down-turn of the market, the costs of litigation, the carrying costs of the property including substantial real estate taxes, and was left only with the prospect of obtaining a judgment for real estate taxes, attorneys’ fees, costs, and possibly slander of title or malicious prosecution, which would be wholly uncollectible unless the seller was able to pierce the corporate veil. 1989). These two cases are not extraordinary situations. All rights reserved. Alternatively, suits for specific performance compelling someone to SELL their property can be successful. Specific performance is ordered only on equitable grounds in view of all the conditions surrounding the particular case. Specific Performance asks the court to force the opposing party … Because of this dilemma, a third party is required to convey title to the successful buyer only when the third party is not a bona fide purchaser without notice of the claim. Because most contract issues … Specific performance is allowed in real estate contracts because each parcel of land is unique and monetary damages are not adequate. In today’s day and age, the marketability of any parcel of property depends on the buyer’s ability to obtain title insurance. 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