When seeking specific performance as a remedy for a breach of a real estate contract in Texas, a buyer must take certain actions to show they were ready to fulfill their part of the agreement. The core requirement is that the non-breaching party must elect the remedy of specific performance over monetary damages. In addition, the buyer must typically demonstrate that they were "ready, willing, and able" to close the transaction.
The Importance of Showing Up to Closing
A crucial step for a buyer seeking specific performance is to show up to the closing ready to perform their obligations under the contract. This demonstrates to the court that the buyer was prepared to complete the purchase, and the seller's failure to do so was the sole cause of the breach. This is particularly important in real estate, since each property is considered unique and monetary damages may not adequately compensate a buyer who has lost the opportunity to acquire a specific parcel of land.
The Exception: Anticipatory Repudiation
An exception to the rule of showing up to closing is a legal concept called anticipatory repudiation. This occurs when the other party makes a clear and unequivocal statement that they will not perform their contractual obligations. If a seller explicitly says, “We’re not going to close,” the buyer is excused from the requirement of appearing at the closing. However, this is a high bar to meet. If there is any doubt about the seller’s intent, the safest course of action is for the buyer to show up at the closing with the necessary funds and documents. The Texas Business and Commerce Code, Section 2A.402, addresses this concept in the context of leases, but the principle of anticipatory repudiation applies to contracts more broadly.
Specific Performance is a Remedy, Not a Cause of Action
It is a common misconception that specific performance is a cause of action. In reality, it is a remedy for a cause of action—namely, breach of contract. A party cannot sue for "specific performance" alone; they must first sue for breach of contract and then request the court to grant specific performance as the remedy. The law generally does not allow a party to obtain both specific performance and monetary damages for the same breach. The buyer must elect which remedy to pursue.
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