Specific Performance Attorney
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After agreeing to a contract to sell or buy real estate, sometimes people change their minds. Specific performance is a process to force them to adhere to the contract. It can be brought against the seller or buyer when one party does not want to close. When this happens, you can sue to force the other to adhere to the contract. A judge may order the sale to be consummated.
If the judge grants specific performance, then you acquire the property under the terms of the contract that everyone agreed to. In Illinois, the contract has to be in writing and signed by the owner.
Specific performance can only be granted where there is a valid and enforceable contract. The contract terms must be so certain and unambiguous that the court can require the specific thing contracted for to be done.
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For the sale of real estate, the essential contractual terms include the - Names of buyers and sellers;
- Description of the property sufficiently definite to enable a surveyor to locate the property;
- The sales price or means of determining the price and the terms and conditions of the sale; and
- The signature of the party charged.
To be enforced, the contract must be for valuable consideration. Also, a contract must have mutuality of obligation before a court will enforce it; that is, at the time the contract was made, either party could enforce it against the other.
A mutuality of obligation issue arises where one party has the unfettered right to terminate the contract.
In addition, where one’s obligation under a contract is subject to the occurrence of a condition precedent, the courts require the person for whose benefit the condition precedent runs to use reasonable efforts to have it occur. If the party cannot remove the condition precedent, then there is no contract and specific performance will not be granted.
