Daily Development for
Friday, June 12, 1998

By: Ira Meislik

Daily Developments normally are edited and prepared by Prof. Patrick A. Randolph, who is in China until late July. Ira Meislik will file periodic developments reports in Professor Randolph's absence.

VENDOR/PURCHASER; VENDOR'S REMEDIES; SPECIFIC PERFORMANCE: Seller under real estate contract was entitled to specific performance after breach by buyer when remedy was authorized by contract, vendor lacked adequate remedy at law since property would be difficult to sell, and buyer, being experienced in land development, was better suited to develop land.

Ludington v. LaFreniere, 704 A.2d 875 (Me. 1998).

A property owner originally purchased undeveloped land from its contract-purchaser. After the property owner was awarded a money judgment against the contract-purchaser by reason of fraud in the initial land sale, the parties agreed that the a cousin of the contract-purchaser would repurchase the land from the property owner. The idea was that the cousin would act as a nominee of the original seller and the original seller, through his cousin, would develop the property. The proceeds of the development would be used to satisfy the judgment. The contract-purchaser refused to proceed to closing.

The repurchase contract provided that upon breach of the purchaser, the "Seller may, at his option, pursue any other remedies available to him, including an action for specific performance of this agreement." The trial court heard and believed evidence that the property would be very difficult to sell, and that the original seller (now the buyer), as someone experienced in land development, was better suited than the selling property owner to develop the land.

Specific performance is a substitute for the legal remedy of compensation whenever, in the discretion of the court, "the legal remedy is inadequate or impracticable." In this case, the seller was entitled to specific performance by the express terms of the contract, and because the improbability of selling the property to other than its original owner made money damages an inadequate remedy. In addition, the trial court opined that specific performance would put the parties in the same position they were in before the contract-purchaser sold the defective property to the seller in the first place.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Woodward at the ABA. (312) 988 5260 or woodwars@staff.abanet.org

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