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Specific Performance & Real Estate Contracts

Specific performance elements

Specific performance elements

In Peoria, Illinois, or anywhere, real estate contracts are very special and different from other contracts because of the land.

The land that is subject to the sale of real estate contract is unique – there is only that one plot of land on the earth!

As a result of this, a cause of action arose over history that requires three special things to allow you to enforce a contract for the sale of real estate thorough a specific performance action.

our attorneys have experience in such things so call us today for help.

Elements of Specific Performance

Illinois courts hold (it means that is what the court said) that there are three elements of a specific performance action that must be proven before a court will award the remedy and make someone close on the sale of real estate.

They are:

  1. existence of a valid, binding and enforceable contract
  2. compliance by the plaintiff with terms of contract
  3. the failure of the defendant to perform its part of the contract.

Existence of valid, binding and enforceable contract

Not all contracts are enforceable – for example, illegal contracts to commit crimes or violate laws are not enforceable – bad news for all those criminals out there trying to enforce their contracts to break the law.

Of course, most real estate contracts are lawful, and therefore often enforceable, valid and binding.

A valid contract also cannot have defenses to escape performance – for example duress, or unclean hands, or fraud.  These are all defenses to the validity of a contract.

The vast majority – well over 95% of all real estate contracts are valid, binding and enforceable.

Compliance by the Plaintiff

In breach of contract actions – the plaintiff (the person that sues in court for its rights) must be entirely blameless.

The plaintiff must have performed its end of the bargain – or have been excused from that performance by the anticipatory breach of the defendant.

Even if the performance by the Plaintiff has been excused, they still must be “ready, willing and able” to perform according to the terms of the contract.

Performance issues is where the real meat-and-potatoes of the specific performance cause of action for real estate contracts comes up.

Questions of fact as to if the Plaintiff has performed, or is ready to perform can be very tricky – call our experienced attorneys today with your unique fact pattern.

 

Specific Performance Under Uniform Commercial Code

A cause of action for specific performance may also be controlled by statute. Section 2-716 of the Uniform Commercial Code (UCC), 810 ILCS 5/2-716, provides for an action for specific performance:

  1. Specific performance may be ordered where the goods are unique or in other proper circumstances.
  2. The judgment for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just.
Thomas Howard

Thomas Howard

Distressed Assets Lawyer

Whether you're a bank or distressed asset purchaser, Thomas Howard can help you quickly recover on your loans.

failure by the defendant to perform

The final of the three-legged stool that is a specific performance action is the breach by the defendant to perform according to the terms of the contract for the sale of real estate.

Quite often one party gets cold feet and wants out of the real estate sale.  They fail to close, which is almost always a defined breach of contract under its plain language. 

Sometimes, the failure to perform is excused due to the complex operations of some real estate contracts with their various amendments and conditions.

If your contract for sale of real estate has fallen through and you want to assert your rights – contact our offices today.

Specific Performance  Lawsuit

Thomas E. Howard

From Peoria, Illinois, and practicing locally for over ten years.

Recognized by Super Lawyers & experienced in Specific Performance actions.

To evaluate your specific performance real estate transaction contact our offices today.

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