Specific performance is an equitable remedy in Texas where a party (almost always the buyer) asks a court to force the seller to transfer the property according to the terms of an earnest money contract. A party seeking the remedy of specific performance must prove and plead 1) compliance with the contract including tender of performance unless excused by the defendant's breach or repudiation and 2) it was ready, willing, and able to perform at relevant times. DiGiuseppe v. Lawler, 269 S.W.3d 588, 593-94, 601 (Tex. 2008).
Typically, a seller may decide not to sell a property prior to closing. The seller may discover that he or she undersold the property or simply change their mind about parting with the real estate. Each parcel of real estate is unique in character and often, monetary damages will not adequately compensate a buyer who wishes to buyer a certain property. As such, the buyer will be forced to plead and prove the required elements of specific performance.
It is common for a seller or the seller's real estate broker to send some sort of notice to the buyer purporting to cancel the contract and declaring a refusal to sell the property. The notice may even include several accusations against the buyer as to why the buyer breached the contract for sale of the property. Should the buyer desire to complete the transaction, the most conservative approach is for the buyer to continue to comply with all terms of the contract and show up to closing ready to provide payment for the property.
However, buyers often contact our firm weeks or months after the close date without having showed up to close the transaction on the close date. Fortunately for the buyer, if a seller has made clear that he or she has no intention of completing the transaction, the buyer is usually excused from showing up to tender payment.
When a defendant refuses to perform or repudiates a contract, a plaintiff seeking specific performance is excused from tendering performance pre-suit and may simply plead that performance would have been tendered but for the defendant's breach or repudiation; this exception to the general rule requiring actual tender is grounded in the notion that actual pre-suit tender of performance should be excused when it would be a useless act, an idle ceremony, or wholly nugatory.
DiGiuseppe v. Lawler, 269 S.W.3d 588 (Tex. 2008)
In the above excerpt, the Texas Supreme Court has indicated it is probably not necessary for a buyer to show up with money to close when a seller has expressly informed the buyer that there is no intention to close. However, it is important to remember that this is an exception to the general rule regarding specific performance. The equitable remedy of specific performance can by difficult to navigate, and it is imperative that a party contact a competent real estate attorney to assist in an initial evaluation and any ensuing litigation.
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