Specific Performance of Purchase Contracts

Presumed Unique, Strictly Proven: Specific Performance from Law Day to Proof of Funds

The buyer’s cause of action has four elements — "the plaintiff substantially performed its contractual obligations and was willing and able to perform its remaining obligations, that defendant was able to convey the property, and that there was no adequate remedy at law" — and it starts from the traditional premise: "Generally, the equitable remedy of specific performance is routinely awarded in contract actions involving real property, on the premise that each parcel of real property is unique" EMF General Contracting Corp. v. Bisbee, 6 A.D.3d 45 (N.Y. App. Div. 2004). The First Department there put a Bronx buyer back into a contract two years stale and a market sharply higher: "There is no adequate remedy at law in this case, in light of the fluctuating market values and the unique nature of this real estate, to remedy EMF’s loss of the benefit of its bargain," and "the increase in market value of the property does not in itself create injustice or inequity" — appreciation belongs to the buyer, because "the vendee in a contract to sell real estate is viewed by the law as the equitable owner of the property, while the vendor is viewed as holding title merely as security for the payment of the agreed purchase price." But the presumption is not the analysis in commercial cases. The Court of Appeals, refusing to compel conveyance of "unique" billboard space, relocated the whole inquiry — Van Wagner Advertising Corp. v. S & M Enterprises, 67 N.Y.2d 186 (N.Y. 1986) held that "[t]he point at which breach of a contract will be redressable by specific performance thus must lie not in any inherent physical uniqueness of the property but instead in the uncertainty of valuing it," since calling property unique "is really saying that [a court] cannot obtain, at reasonable cost, enough information about substitutes to permit it to calculate an award of money damages without imposing an unacceptably high risk of undercompensation on the injured promisee" — and even then "the imposition of an equitable remedy must not itself work an inequity, and … specific performance should not be an undue hardship."

Timing doctrine decides many of these cases before uniqueness is ever reached. Grace v. Nappa, 46 N.Y.2d 560 (N.Y. 1979) fixed both rules: "Ordinarily, the law will allow the vendor and vendee a reasonable time to perform their respective obligations, regardless of whether they specify a particular date for the closing of title," but "[w]hen there is a declaration that time is of the essence, however, each party must tender performance on law day unless the time for performance is extended by mutual agreement" — once the clause is in, "the date established as the law day takes on especial significance." When the contract is silent, either side can create the deadline unilaterally, and Kugel v. Reynolds, 228 A.D.3d 743 (N.Y. App. Div. 2024) polices how: the notice "must (1) give clear, distinct, and unequivocal notice that time is of the essence, (2) give the other party a reasonable time in which to act, and (3) inform the other party that if he [or she] does not perform by the designated date, he [or she] will be considered in default," with reasonableness measured by "the nature and object of the contract, the previous conduct of the parties, the presence or absence of good faith, the experience of the parties and the possibility of prejudice or hardship to either one, as well as the specific number of days provided for performance." The seller’s short-fuse notice there was a nullity, and the buyers’ contract remained in full force.

Financing and readiness are where buyers’ cases die. Cadaner v. Johnson, No. 1-22-01070 (Bankr. E.D.N.Y. Jun 13, 2025) — a contest between competing purchasers of the same property — collects the New York rules: specific performance is available only if the seller is "‘able but unwilling’ to convey the property on the terms set forth in the contract on the closing date" and "the purchaser is ready, willing and able to accept the conveyance on that date"; "When a purchaser submits no documentation or other proof to substantiate that it had the funds necessary to purchase the property, it cannot prove, as a matter of law, that it was ready, willing, and able to close"; and the burden survives the seller’s own breach, because "a buyer must show it is ready, willing, and able to perform notwithstanding repudiation of the contract by the seller" — as the Court of Appeals put it, "[s]ince the buyers can more readily produce evidence of their own intentions and resources, it is reasonable to put the burden on them." The purchaser there had only conditional mortgage commitments and no proof of personal funds, so the specific-performance claim was dismissed.

Build the record the doctrine demands. Sellers who want out should make time of the essence the right way — a clear, unequivocal notice, a genuinely reasonable window measured against the parties’ course of dealing, and an express warning that failure to close is a default — because a short-fuse notice is a nullity that leaves the contract alive. Buyers should paper their ability to close as of law day: unconditional financing commitments, proof of liquid funds, and a clean tender, since a conditional mortgage commitment will not carry the burden even against a repudiating seller. And in commercial deals, do not lean on the land-is-unique presumption alone — after Van Wagner the operative question is whether the property’s value can be fixed with reasonable certainty, so plead the fluctuating market, the absence of substitutes, and the deal-specific features that make a damages calculation speculative.