Buyer’s Remedy—Specific Performance

Updated on November 3, 2022

When a seller breaches his obligation to convey the property to a buyer, the buyer may seek the equitable remedy of specific performance. Note, that a buyer cannot receive damages for both breach of contract and specific performance because awarding a buyer this would amount to double recovery.

Specific performance of a purchase agreement may be decreed when:

(1) its terms are sufficiently definite;

(2) consideration is adequate;

(3) there is substantial similarity of the requested performance to the contractual terms;

(4) there is mutuality of remedies; and

(5) plaintiff’s legal remedy is inadequate

(Blackburn v. Charnley (2004) 117 Cal.App.4th 758, 766.)

 In addition, under Civ. Code  § 3388, “a party who has signed a written contract may be compelled specifically to perform it, though the other party has not signed it, if the latter who has performed, or offers to perform it on his part, and the case is otherwise proper for enforcing specific performance.” In other words, it is not mandatory that the buyer executed the contract. As long as the seller signed the contract, and the buyer has performed or tendered performance in compliance with the purchase and sale agreement, the buyer can seek a specific performance as a remedy.
Typically, even if the purchase and sale agreement contains a liquidated damages clause, a buyer may still seek specific performance. (See Civ. Code  § 3389.) However, if the contract specifically makes the liquidated damages amount the sole remedy, specific performance is not an available remedy for the buyer.