The Five Steps to Prosecute a Successful Lawsuit For Specific Performance

Disputes over the purchase and sale of real estate differ from other legal disputes because the jilted party in a real estate transaction can often ask the court to actually enforce the contract. Rather than awarding money damages, a court can order parties to go through with the transaction. This is crucial when a project relies on a specific location or the land under contract is part of a bigger development project. However, an uninformed party can unintentionally impair his right to this unique remedy if not careful. Here is what it takes to prosecute a successful lawsuit for Specific Performance.

1. What is Specific Performance?

Specific performance asks the court to force the opposing party into a contract that binds them to actually perform the contract at issue, rather than awarding damages for breach of the contract. In real estate transactions, a buyer can force a reluctant seller to live up to the purchase and sale agreement.

2. What are the requirements for a Specific Performance Lawsuit?

A complaint for specific performance must allege: (a) the making of a specifically enforceable type of contract, sufficiently certain in its terms; (b) adequate consideration, and a just and reasonable contract; (c) plaintiff's performance, tender or excuse for nonperformance of the contract; (d) defendant's breach of the contract; and (e) inadequacy of a remedy at law.

3. What does this mean in plain English?

Specific Performance typically arises in a real estate transaction. The law considers real property to be unique and therefore a contract to purchase real property to be unique and therefore a contract to purchase real property can be specifically enforced. It is presumed that monetary damages are not enough to compensate for a breach of contract to sell real property and therefore a court will force an owner to sell the property according to the contract.

The Terms Must be Certain

Essential factors include identifying (1) the seller, (2) the buyer, (3) the price to be paid, (4) the time and manner of payment and (5) the property to be transferred.In other words, the court must be able to figure out what to enforce. What is "essential" depends on the circumstances of the agreement, including the agreement and its context, the subsequent conduct of the parties, the remedy sought, and, quite frankly, which judge is hearing your case.

In some instances, where certain terms are missing, the court will insert "reasonable terms," often based on custom in the industry. For example, when no time is specified for payment, the court may decide upon a 'reasonable time.' When a manner of payment is lacking, the court will assume that the payment will be by cash or cash equivalent. However, some courts have found the lack of a time for payment in the contract to render the contract unenforceable.

The Buyer Paid Adequate Consideration And The Contract Was Just

In many cases, the payment of even $1 is adequate consideration. Moreover, where the seller enters into the contract willingly, he is often presumed to have waived any argument that the price of the deal was inadequate. Typically contracts are negotiated at arms length and their adequacy is not an issue.

Plaintiff Must Have Performed the Agreement

A buyer who failed to deposit the purchase price in escrow by the deadline cannot then turn around and sue the seller for specific performance. In order to enforce a contract, a party must have met his obligations under the contract or show a reason why his performance is excused.

The Defendant Must Have Breached the Agreement

The failure to convey the property will usually constitute a breach of the purchase and sale agreement. Typically the defendant will argue that the plaintiff is the one who breached the agreement and that is why the deal was not completed.

A Money Award Must Be Inadequate.

Again, the law presumes that real property is unique and therefore an action to enforce the sale of a particular piece of property can typically be enforced by specific performance.

4. What Happens When You Win A Specific Performance Lawsuit?

When a party wins a specific performance lawsuit, the court will seek to put the parties in the position they would be in if the contract had been performed pursuant to its terms. This means the court will order the sale of the property at the price and terms agreed upon. Moreover, the victorious party will also be entitled to a judgment for the rents and profits from the time he was entitled to the conveyance under the contract.

The court will consider an equitable accounting to relate the performance back to the contract date of performance.For example, if a tenant has been paying rent on a building, the buyer would be entitled to those rents during the time that the matter was tied up in litigation. Conversely,if the owner has been making payments on the mortgage, property taxes and insurance, these payments must be taken into account as well.

5. Lessons Learned

When a purchase and sale deal starts to unravel, seek legal advice. While the other party may have breached the agreement,the wrong response (i.e., refusing to perform your obligations) can destroy your chances for success on a subsequent lawsuit.Proper legal advice can also help you ascertain your legal right to seek specific performance.

Pre-Settlement Funding Lawsuit Loans For Personal Injury Cases

When you have been injured due to another party's negligence, you may benefit from pre-settlement funding for your personal injury case. Insurance companies often try to force you in to taking a lesser amount than you deserve. Litigation financing is an option for those who need help in order to meet their bills for the duration of their case.

Lawsuit funding is an advantage that many people don't know about. When you file a suit for personal injuries you have received in an accident, it usually takes much longer than many people expect for it to settle. This can create a financial hardship on your family. If you are unable to work, this is especially true.

Auto accidents, slip and falls, spinal injuries - no matter what caused you to be injured, if a third party is responsible you deserve to be compensated. Insurance companies know that serious cases usually take longer to settle. They use this information to their advantage and try to persuade you in to settling for less money.

Pre-settlement funding is an option to help you remain financially stable throughout the duration of your case. On the average, it takes months to settle a claim. If a large company or corporation is involved, it may take years. Personal injury lawsuit loans enable you to have the money you need for household bills, medical fees and other expenses while waiting for your claim to be determined.

Litigation financing companies offer this advance (it is not a loan) to people who meet the requirements. Your attorney will submit the necessary information for the funding company to peruse. If your case meets the requirements, you will usually have the money you need that same day.

The wonderful thing about lawsuit funding is that in the event you do not win your claim, you owe the litigation financing company nothing. This helps ease some of the burden because you do not have to worry about another loan that must be repaid. If you do win your case, you owe only the amount that was determined previously. An attorney usually handles all of this for the plaintiff.

If you have been injured but fear that insurance companies are going to try to persuade you to settle for less, or you are having financial problems, consider pre-settlement funding. It is a viable solution to help you avoid additional stress over finances when you are in pursuit of justice. Litigation financing companies offer the help you need, when you need it.

What is Lawsuit Financing and Why Should I Use It?

Lawsuit financing (commonly known as lawsuit loans or lawsuit advance) is a means to pay living expense during a pending litigation. Most of the time the plaintiff has financial burden as a result of the legal expenses.

In the case of a personal injury lawsuit, where injury affects the plaintiff's ability to work, he or she will lose income, accumulate unpaid bills and owe medical expenses. The medical expenses are often expensive due to the nature of the injury.

Because of the added financial burden, the plaintiff should consider lawsuit financing.

While plaintiffs who claim personal injury may eventually receive settlement, it may take a long time to receive the compensation. Defendants that are large companies may prolong the litigation to force the plaintiff to settle for a lower compensation or drop the litigation. When this happens, a litigation advance can help you persevere against the delay in settlement and eventually receive the fair amount of compensation.

Even though conventional means of funding (such as credit cards and bank loans) are less costly, they require checks on your credit ratings, employment and net worth. If you do not fulfill the stringent standards that show your ability to repay the credit/loan, your loan will not be approved. And these standards will likely be unmet without a job and maxing out your credit card.

This is where there is an advantage with lawsuit loans. Lawsuit financing companies review your lawsuit and determine if there is a high probability of you receiving settlement. In most cases, this will be so. And that is the main requirement for a lawsuit financing application.

Moreover, you only repay the lawsuit cash advanced to you if you win the lawsuit or receive out-of-court settlement. If you lose the case and compensation, you do not need to repay the lawsuit 'loan'.