Specific Performance: Sale of Land
| Author | Jeffrey Berryman |
| Profession | Professor of Law. Faculty of Law University of Windsor |
| Pages | 225-247 |
CHAPTER
12
SPECIFIC
PERFORMANCE:
SALE
OF
LAND
A.
INTRODUCTION
It
has
been repeatedly said that land
is
considered unique
and
therefore
there
is a
presumption that
specific
performance will
be
granted
of any
contract
involving realty.
The
justification
for
this
position
is
that
no
two
pieces
of
land
are
identical
and
that each
has a
special
and
peculiar
value
to a
purchaser.1
With respect
to the
vendor's position,
the
doc-
trine
of
affirmative
mutuality
has
created
an
equivalent presumption
that
specific
performance will
be
granted
to a
vendor despite
the
ease
in
assessing damages. This
may
still accurately
reflect
the
position
in
other common
law
countries; however, since
the
Supreme Court
of
Canada's
judgment
in
Semelhago
v.
Paramadevan,2
it
cannot
be
assumed
to
accurately
reflect
the
position
in
Canada.
1 See
Adderley
v.
Dixon
(1824),
1 Sim & St.
607,
240-41,
Leach
VC
(Ch.).
2
[1996]
2
S.C.R.
415
[Semelhago].
225
226 THE LAW OF
EQUITABLE
REMEDIES
B.
PURCHASER'S
APPLICATION
1)
Adequacy
of
Damages
Recall
from
chapter
10
that
the
main argument supporting
the
para-
mount position
of
damages
in our
remedial taxonomy
is the
relative
efficiency
of
resolving disputes. However,
this
efficiency
can
create
an
injustice where
the
quantification
of
particularly subjective
interests
forms
an
important part
of the
plaintiffs
motivation
for
entering
the
contract. With respect
to the
sale
of
land, there
has
been
a
presumption
that
a
purchaser's motivation towards
a
particular piece
of
property
always
carries with
it a
desire
to
satisfy
a
number
of
subjective goals.
We can all
readily
identify
with
wishing
to
acquire
our
"dream
home;"
once
we had
found
it, we
would
not
readily part with
it
even
for a
king's
ransom. Unfortunately,
when
we put
this
argument
to
scrutiny
we
quickly realize that
it
does
not
accord with
the
contemporary mar-
ketplace
or our
participation
in
that market.
The
market
is far
more
dynamic than
the law
presumes.
The
choice
to
purchase
is not
made because
one
particular prop-
erty,
romanticially viewed, meets
our
dream home ideal. Rather,
the
cold reality
of
what
a
person
can
afford,
location,
and
number
of
bed-
rooms gives
us a
number
of
options
unrelated
to the
unique character-
istics
of any
individual home.
We
rarely reside
in one
house during
our
entire
life.
The
advertisers'
siren
call
to
purchase
a
"starter home"
or
"handyman's special,"
or, at the
other
end of the
life
cycle,
to
real-
ize
savings
from
a
now-too-large
family
home,
all
belie
the
uniqueness
of
those properties.
The
boring similarity
of our
suburban housing
developments, made
famous
by
Pete Seeger's rendition
of
Malvina
Reynolds' song "Little Boxes" also undercuts
any
notion
of
unique-
ness.
The
fact
that people
in
urban centres
are
more likely
to
rent
than
own has
created vast scope
for
property investors guided
by
prin-
ciples
of
market return
and the
commodification
of
property
as
simply
another investment vehicle.
Despite prior authority that confirmed
the
presumptive nature
of
specific
performance,3
the
Supreme Court
of
Canada
has
revised
this
position
in
Semelhago.4
The
appellant vendor
had
refused
to
close
a
real-estate transaction
for the
sale
of his
residential home.
The
respon-
dent
had
agreed
to buy the
appellant's home
for
$205,000.
The
deal
3 See
Kloepfer
Wholesale
Hardware
&>
Automotive
Co. v.
Roy, [1952]
2
S.C.R.
465;
and
Bashirv.
Koper
(1983),
40
O.R. (2d)
758
(C.A.).
4
Above
note
2.
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