Almost all residential real estate contracts in Florida provide that either the buyer or seller (or, in some cases, both) is entitled to seek the remedy of specific performance.

What is specific performance?

Specific performance is an equitable remedy that forces the other party to perform under a contract, provided that party seeking performance (i.e., the plaintiff) is ready, willing and able to comply.

In most instances, the remedy of specific performance is brought by a buyer, who asks the court to order the seller to convey the property in exchange for the purchase price stated in a contract. The court’s judgment can serve as a valid transfer of the property, much like a deed.

Historically, and especially during the crazy real estate boom of the early 2000s, specific performance claims against buyers were rarely pursued. In fact, many sellers were happy to have a buyer back out, since it usually meant that the seller could sign a new contract with a new buyer at a higher price.

Impact of a declining real estate market on specific performance claims


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5-4-2016 8-11-32 AMFreedom to contract is one of the cornerstones of our system of jurisprudence. As long as the subject of the contract is not illegal or contrary to an established public policy, we Americans can contract in just about any manner we wish.

Yet, all too often when disputes arise in connection with a construction project, we find parties who have no contract or (potentially worse) a contract which is not suitable for the nature of the project and/or the interests the parties wish to protect.

The construction industry is somewhat unique because of the wide range of potential parties and relationships involved in a project: owners/developers, general contractors, design professionals, subcontractors, materials suppliers, lenders, sureties, just to name a few. These numerous relationships make it all the more important to protect yourself with appropriate contractual provisions.


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iStock_000015122897XSmall.jpgIncreasingly, paper is becoming a thing of the past, and although the law is notoriously slow to follow trends, it has been rather quick to latch onto the digital wave.

It is as if some black-robed man with a curly white wig slammed down the gavel and proclaimed, “All men witnesseth that heretofore law shall no longer move like a snail, but rather shall transpire at the speed of light!”

In 2000, Congress actually made such a proclamation; it passed a law making electronic documents and electronic signatures valid in almost every legal fact, except wills, certain trusts, and some relatively esoteric commercial transactions.


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Mortgage contractMany home sellers mistakenly consider an “AS IS” sales contract as a release from liability for all faulty or defective conditions on the sale of a home. However, under the landmark case of Johnson v Davis, 480 So. 2d 625 (Fla. 1985) the Florida Supreme Court took a different view.

Florida Supreme Court’s View on “AS IS”

In Johnson, the Florida Supreme Court effectively changed the law in Florida holding that where a seller of a home knows of facts materially affecting the value of the home which are not readily observable and are not known to the buyer, the seller is under a duty to disclose those facts to the buyer.

The effect of Johnson does not make a seller of a home a warrantor of the good condition of the home. Slitor v Elia, 544 So. 2d 255 (Fla. 2d DCA 1989). However, recognizing that in the sale of a home, full disclosure of material facts must be made wherever elementary fair conduct demands it, caveat emptor (or let the buyer beware) is not the rule in Florida residential transactions. Therefore, in the sale of a home, if a seller knows something that materially affects the value of the home which is not readily observable, it must be disclosed. Otherwise, the seller may be subject to various fraud claims or breach of contract claims by the buyer.

But my contract expressly states “AS IS”


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