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Tips for Achieving More Certainty of Specific Performance Availability

By Adrienne B. Koch and Neil S. Miller
August 01, 2023

Both litigators and transactional lawyers know the basic drill: specific performance is available for breach of a contract whose subject matter is so unique that money damages will not adequately compensate the non-breaching party. All are also familiar with the axiom that real estate is a unique asset. But it does not necessarily follow that specific performance is generally available for breach of an agreement that involves real estate.

This article discusses why and suggests some ways parties can achieve more certainty in this regard.

A Brief Primer

First, a word on specific performance. The concept itself is deceptively simple: the remedy — an order directing a party to perform contractual obligations that it has breached — is available where money damages cannot provide an adequate remedy for the breach.

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