Key points
- Under the standard TREC contract’s default paragraph, a non-defaulting party may generally enforce specific performance, seek other relief allowed by law, or terminate and receive the earnest money.
- The buyer must show it was ready, willing and able to close, typically with financing or funds in place.
- A buyer usually must tender performance unless the seller’s repudiation made tender futile.
- Recording a lis pendens quickly can keep the seller from selling to someone else while the case is pending.
When specific performance is available
Specific performance is an equitable remedy, so the court has discretion. Texas courts generally grant it in real estate cases because money damages rarely substitute for a particular piece of land. You’ll typically need to establish:
- A valid, enforceable contract in writing, signed by the party to be charged, with a sufficient property description (Tex. Bus. & Com. Code § 26.01);
- Your own compliance with the contract’s material terms, such as timely earnest money, option fee, financing and notices;
- That you were ready, willing and able to perform, with the funds or financing to close; and
- Tender of performance, or proof that tender would have been futile because the other side had already repudiated.
Common scenarios in Houston
- A seller receives a higher offer during or after the option period and refuses to close;
- A seller’s heirs or spouse refuse to sign after the seller dies or divorces;
- An investor-seller fails to deliver title or cure title objections in bad faith;
- A commercial seller backs out after the buyer has spent heavily on due diligence; or
- A buyer refuses to close and the seller must decide between specific performance, damages and keeping the earnest money.
Specific performance vs. damages vs. earnest money
| Remedy | What you get | When it makes sense |
|---|---|---|
| Specific performance | The property, on contract terms. | When you want the property itself, it has appreciated, or it’s unique to your plans. |
| Damages | Benefit-of-the-bargain and consequential losses. | When the property no longer fits your plans or a sale to a third party has already closed. |
| Earnest money | Return (buyer) or retention (seller) of earnest money. | A quick exit when losses are small or proof is uncertain. |
You generally have to choose. A party can plead remedies in the alternative but can’t recover both the property and damages that assume the sale never happened. Making the right election early shapes the evidence you need.
The other side just told you they won’t close?
What you do in the next few days, including tender, notices and recording a lis pendens, can decide the case. Call (346) 363-0334 or book a discovery call.
Protecting the deal while the case is pending
A seller who wants out may try to sell to someone else quickly. Recording a notice of lis pendens in the county real property records puts later buyers and lenders on notice of your claim. In urgent situations we seek a temporary restraining order. We also make sure you keep your financing and earnest money position intact so you remain “ready, willing and able.”
Defending against specific performance
Sellers have real defenses: the buyer’s own breach, failure to satisfy financing or other conditions, a defective property description, termination during the option period, lack of tender, and laches. We evaluate them quickly and look for a business resolution that limits your exposure.
Attorney’s fees
The standard TREC residential contract includes a provision allowing the prevailing party in a legal proceeding related to the contract to recover reasonable attorney’s fees. Many commercial contracts do too. That provision often gives the party with the stronger case meaningful leverage.