Specific performance

Key Takeaways

• Specific performance is an equitable remedy in which a court orders the promised performance instead of awarding money.
• Courts grant it in real estate because each parcel is treated as unique, so cash damages are not an adequate substitute for the property itself.
• Specific performance comes from contract doctrine developed by the courts, not from a Washington statute that creates the remedy.
• In Washington, an agreement may make earnest money forfeiture the seller's sole and exclusive remedy against a defaulting buyer, and RCW 64.04.005 enforces that clause up to five percent of the purchase price.

What It Means

Specific performance is a court order that makes a party carry out the contract as promised, rather than pay for having failed to. It belongs to the family of equitable remedies, which a court grants when money will not put the injured party where the contract promised to put them. That is the ordinary situation in real estate. A buyer who contracted for a particular house on a particular street cannot use a damages check to buy that house from a seller who refuses to sell it, because there is only one of it. Courts express this by saying land is unique.

The remedy is a response to Breach, so it sits alongside the money remedies rather than replacing them. An injured buyer can sue for damages, or can ask the court to order the seller to convey. Which path is open depends heavily on what the Purchase And Sale Agreement says, because parties are free to agree in advance that a specific sum will settle a default. A contract that names one remedy as exclusive is limiting what a court will do later.

How It Works in Washington

Washington has no statute that creates specific performance. It is an equitable remedy the courts grant, so it is contract doctrine rather than license law, and no RCW section spells out when a judge must order a sale to close. What Washington statutes do is shape the remedies around it. RCW 64.04.005 makes a Liquidated Damages or earnest money forfeiture provision valid and enforceable as the seller's exclusive remedy against a buyer who fails without legal excuse to complete the purchase, provided the amount forfeited does not exceed five percent of the purchase price. The statute adds that it does not supersede the common law for provisions above five percent.

A buyer who sues for specific performance also has a recording tool. Under RCW 4.28.320, once an action affecting title to real property is commenced, a party may file a notice of the pendency of the action with the county auditor, and from the time of filing it is constructive notice to a purchaser or encumbrancer. The notice does not force a sale, it warns anyone considering the property that a claim is pending.

Example

Ray agrees in writing to sell Nadia a five acre Whatcom County parcel for $420,000, and Nadia deposits $12,000 in Earnest Money. Before closing, a neighbor offers Ray more and Ray refuses to sign the deed. Nadia does not want a refund, she wants the parcel, so she sues for specific performance and files a notice of pendency with the county auditor under RCW 4.28.320. From that filing forward, anyone looking at the title takes notice of her claim, and the neighbor's interest in buying cools off quickly.

Run the default the other way and the numbers control. If Nadia had walked away without legal excuse and the agreement made earnest money forfeiture Ray's sole and exclusive remedy, RCW 64.04.005 would enforce that clause up to five percent of $420,000, which is $21,000. Her $12,000 deposit sits under that ceiling, so Ray would keep the $12,000 and that would be the end of his claim.

Common Mistakes and Exam Traps

• Specific performance is not a damages award; the party asking for it wants the contract performed, not a payment.
• Specific performance and a sole-remedy liquidated damages clause are alternatives, not a stacked pair, so an agreement that names forfeiture as the exclusive remedy has traded the other one away.
• The reason courts order specific performance for land is that each parcel is unique, which is why the remedy is rare for ordinary goods a buyer can purchase elsewhere.
• No Washington statute creates specific performance, so an answer choice that cites an RCW as the source of the remedy is wrong.