By Elliott Topkins, Esquire
12/29/11
There is a legal axiom that “no piece of real estate is exactly like another piece of real estate.” This goes back to medieval days. That means a tract home in a subdivision is not exactly the same as the home right next door to it, even if the homes have the same colors, specifications and more or less same location.

What this means is that if someone contracts with you to sell you a home, and reneges, you can require that person to go through with the sale, even if the person may have sold the home to another person in the interim.

Now, put the shoe on the other foot. Suppose a buyer enters into a contract to purchase, gets a mortgage commitment in a timely fashion, and then loses his job between the time of the commitment and the closing date. In today’s rather inconsistent employment environment, that really could happen. In Massachusetts, the standard pre-printed purchase and sale agreement gives the seller the right to require the buyer, who almost necessarily will default if he has no job, to “specifically perform” and make up the difference between what the seller would have received if the original buyer had performed, and the actual price which the seller received for the property. In a declining market, that can be a rather large “hit” for the buyer.

The irony of this situation is that in my nearly 43 years of practicing law, I have never had a fellow attorney refuse to change that standard provision, and I have never not permitted a buyer’s attorney from obtaining the same courtesy from me. In those rather awkward situations where a Realtor tells his or her buyer that they do not need an attorney, and a situation like this arises, there can be some real explaining to do. My point is having this type of provision in a standard document constitutes the most obvious case of “trap for the unwary,” and I would suggest that responsible Realtors remove it forthwith.

Here is another idiosyncrasy of specific performance, and it happened right here in the commonwealth of Massachusetts. A man entered into a purchase and sale agreement for the sale of a property, which he held in a trust of which he was the sole trustee. It was a rising market at the time, and he reneged on the sale. The highest court in Massachusetts held that the buyer was not entitled to “specific performance” because the signer of the contract was not the owner of the land. The buyer could get money damages for fraud, but could not compel the conveyance.

So specific performance can act in many strange ways. Because it can, it is to me just another reason why having a seasoned real estate attorney, on your side, by your side, is always worth the investment. The rather pedestrian action of checking at the relevant Registry of Deeds can tell you who the owner is and prevent situations like the ones I have described.

(Mr. Topkins is an attorney with Topkins & Bevans, Braintree Executive Park, 150 Grossman Dr., Braintree, MA 02184. His blog can be found at http://realtorsresourceblog.com. His telephone number is 617/596-3184 and his e-mail address in etopkins@topbev.com.)