What is the test for specific performance in real estate?

Alberta, Canada


The following excerpt is from White Room Ltd. v. Calgary (City of), 1998 ABCA 120 (CanLII):

The appellant argues that this location is uniquely suited for a Viennese-type restaurant in the vicinity of theatre and concert facilities. The force of that argument is not as strong for a lessee as it might be for a purchaser. But even a purchaser can no longer demand specific performance merely on the ground that the agreement is for purchase of real property as was stated by Sopinka, J. in Semelhago v. Paramadevan: While at one time the common law regarded every piece of real estate to be unique, with the progress of modern real estate development this is no longer the case. Both residential, business and industrial properties are mass produced much in the same say as other consumer products. If a deal falls through for one property, another is frequently, though not always, readily available. It is no longer appropriate, therefore, to maintain a distinction in the approach to specific performance as between realty and personalty. It cannot be assumed that damages for breach of contract for the purchase and sale of real estate will be an inadequate remedy in all cases. Specific performance should, therefore, not be granted as a matter of course absent evidence that the property is unique to the extent that its substitute would not be readily available.[2]

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