When a person or company breaches a contract,the other party can seek a legal remedy. In real estate, a common remedy is specific performance, which compels the breaching party to fulfill the terms of the contract. A buyer pursuing specific performance must prove they were “ready, willing, and able” to close the deal. The most straightforward way to do this is by showing up to the closing prepared with the required funds.
The Exception to the Rule
The need to physically attend a closing is waived under the legal doctrine of anticipatory repudiation. This occurs when one party makes it unequivocally clear that they will not perform their obligations before the time for performance arrives. A common example in real estate is when a title company or escrow officer sends written notice—such as an email—stating that the seller will not appear at the closing. In this scenario, the buyer is not required to attend, since doing so would be a futile act.
The Best Practice for Buyers
While anticipatory repudiation is a valid legal exception, the safest course is often to attend the closing if there is any uncertainty about the seller’s intentions. A clear paper trail—such as written confirmation from an escrow officer or real estate agents—is essential. Still, the strongest evidence in court is proof that the buyer appeared at the agreed-upon location, ready to close the deal.
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