What is the test for specific performance of a contract for the purchase and sale of a residential property?

In Chan v. Tu, 2006 BCSC 934, Goepel J. granted specific performance of a contract for the purchase and sale of a residential property. Goepel J. wrote that he was “satisfied that this home, for this family, is unique and that no substitute was readily available”. The home was in a particular school district, with a garden, had five bedrooms, was less than 20 years old, and was in a particular price range. The plaintiff’s evidence was that he did not find any comparable homes in the area that were acceptable to him, but there was no objective evidence of the availability of comparable homes.

In Li v. Au, 2006 BCSC 671, Loo J. refused the remedy of specific performance. There was objective evidence of other comparable homes, including two properties on the same street, each of which the plaintiff had rejected for subjective reasons. Loo J. wrote that there did not have to be identical homes readily available, and she concluded that the home was not unique.

In Sihota v. Soo, 2010 BCSC 886, Bruce J. awarded specific performance. The property was a residential lot in a particular area of Vancouver, close to a school, the plaintiff’s parents’ home, and other amenities. The defendants led evidence of 22 other properties which they argued were comparable. Bruce J. wrote that the evidence “is sufficient to satisfy me that the property is unique in the sense that a comparable property that would meet all of the plaintiff’s requirements is not readily available.” In addition, damages were not an adequate remedy because one of the defendants did not have the ability to pay damages.