Seller backs away - 'specific performance' possible?

[Shahid Iqbal]

Hi Pros,

I can use your guidance here.

I have scenario where buyer signed a contract to purchase a piece of land here in Texas held by a trust. Contract is using standard 'TREC Unimproved Property Contract' with seller responsible to provide survey and pay for title / commitment. There were two installments of earnest money that were both paid by the buyer on-time. As closing date (originally May 2) approached, seller was not providing original trust that was required by title company to issue the title commitment. Before closing, survey was performed (paid by buyer; but seller is responsible for the cost) and it identified that there was encroachment by neighbor. Buyer raised the objection for boundary issue to be resolved a day before closing date; so per contract language, closing date gets extended for 14 days for seller to cure the objection. In first week of May, seller provided the title company original trust and agrees to extend the closing date to May 15. Even though there was objection on boundary issue, buyer is open to idea of closing on property as long as title commitment can be issued with exception. Title company responded that it's not able to get anyone to issue title commitment and returned the earnest money to buyer. So that is where things are now.

Buyer is still interested to close the property and asking seller to take contract to different title company and execute. Buyer has incurred about $5000 (survey and other due diligence related cost). Now seller is not cooperating or responding to any of buyer attempt and kind of walking away from the contract.

Buyer is considering to file for 'specific performance' so seller complies with contract. Is this a case that typically good chance for buyer to:

A. Force the sale of the property. AND/OR

B. Force seller to pay for the monetary damages / expenses incurred by buyer and any related attorney charges for covering 'specific performance' case.

Many thanks.

[Ronald Rohde]

Quote from @Shahid Iqbal:

Jay,

Thanks for the response. If buyer has been in compliance of terms, what triggers him 'out of contract'? Is this the return of earnest money or something else?

Moreover, just to clarify contract specifically says: 'A new survey will be ordered for which seller will be responsible to pay up to $2000.' This survey was ordered / paid by buyer. 

In this situation what happens to this money?

Buyer eats it. Typically the language is Seller will reimburse at closing, if no closing, no fees.