Specific Performance

Specific performance is an equitable remedy granted by the BC Supreme Court that compels a party who has breached a real estate contract to complete the transaction, rather than simply paying monetary damages. It arises from the court's inherent equitable jurisdiction and is discretionary, meaning the court weighs all relevant circumstances before granting it. It is available in BC because land has traditionally been regarded as unique, though that presumption no longer applies automatically following Semelhago v. Paramadevan, [1996] 2 SCR 415.

Yes, but the buyer must establish on the evidence that the property is unique to their particular circumstances, rather than relying on a blanket presumption that all real property is unique. The Supreme Court of Canada in Semelhago v. Paramadevan, [1996] 2 SCR 415, held that courts should not automatically assume uniqueness simply because the subject matter is land. For single-family residential properties in BC, uniqueness can often be demonstrated on the facts — for example, through particular location, features, or the buyer's inability to obtain a comparable substitute — but this must be argued and proven in each case.

The BC Supreme Court has jurisdiction to grant specific performance, as it exercises the inherent equitable jurisdiction that historically resided in courts of equity. The BC Provincial Court does not have equitable jurisdiction and cannot grant specific performance. A party seeking this remedy must commence an action in the BC Supreme Court, governed by the BC Supreme Court Civil Rules.

Yes, specific performance is available to either party to a real estate contract — a seller can apply to the BC Supreme Court to compel a defaulting buyer to complete the purchase and pay the agreed price. However, the remedy remains discretionary, and the court will assess whether damages would be an adequate remedy and whether granting the order is equitable in the circumstances. In practice, sellers more commonly claim damages or retain a deposit under the contract, but specific performance is a recognized option.

The BC Supreme Court exercises its discretion by considering factors such as whether monetary damages would be an adequate remedy, the conduct of the parties (including whether the applicant has acted promptly and equitably), the uniqueness of the property to the claimant, and whether granting the order would cause undue hardship to the defendant. The court may also consider whether the contract was specifically enforceable at the time it was made and whether the applicant has performed or offered to perform their own obligations. Because the remedy is equitable, any unconscionable or dilatory conduct by the applicant (sometimes described by the maxim 'he who comes to equity must come with clean hands') can be a bar to relief.

A BC real estate licensee regulated under the Real Estate Services Act (RESA) and overseen by the British Columbia Financial Services Authority (BCFSA) must not provide legal advice and should promptly refer a client to a BC lawyer when a contract dispute arises that may involve specific performance. Licensees are obligated under RESA and BCFSA conduct standards to act in the client's best interests, which includes disclosing when a matter exceeds the licensee's expertise. The decision to pursue or defend a specific performance claim is a legal matter outside the scope of licensed real estate services.

Yes — the sale and purchase of a strata lot is governed in part by the Strata Property Act (SBC 1998, c. 43), and a purchaser seeking specific performance would still need to comply with the strata corporation's requirements upon completion, including obtaining a Form F Certificate of Payment confirming no outstanding strata fees or levies are owed. If the vendor has failed to provide required disclosure documents, such as a Form B Information Certificate, the purchaser may have separate rights under the Strata Property Act. The existence of strata-specific documents and obligations does not fundamentally alter the court's equitable analysis for specific performance but may be relevant to the overall circumstances the court considers.

If the BC Supreme Court orders specific performance, the transaction proceeds to completion, and the deposit held in a licensee's trust account under the Real Estate Services Act (RESA) and BCFSA Rules is applied toward the purchase price in the ordinary course. Trust account obligations under RESA require that a licensee hold deposit funds in trust until the parties are entitled to them, and a court order for specific performance would establish that entitlement. The licensee must not release trust funds except in accordance with the contract, the parties' instructions, or a court order.

Yes — a transfer of property completed under a specific performance order is still a taxable transaction under the BC Property Transfer Tax Act, and the transferee must file a property transfer tax return and pay the applicable tax. PTT is calculated on the fair market value of the property at the time of registration, using the standard rate tiers of 1% on the first portion of value, 2% on the next portion, 3% on the portion above a higher threshold, and an additional 2% on the residential portion exceeding $3,000,000. Any available exemptions, such as the First-Time Home Buyers' exemption (currently applicable on properties up to $835,000) or the Newly Built Home exemption (up to $1,100,000), must be assessed based on the buyer's individual eligibility at the time of registration.

The equitable remedy of specific performance is not inherently unavailable simply because the land is within BC's Agricultural Land Reserve, administered by the Agricultural Land Commission under the Agricultural Land Commission Act (SBC 2002, c. 36); the BC Supreme Court retains its equitable jurisdiction to compel completion of such a contract. However, any contract for ALR land that requires ALC approval — for example, for subdivision, non-farm use, or removal from the ALR — may be conditional on that approval, and a court would consider whether the contract conditions have been satisfied before ordering completion. Parties transacting in ALR land should consult both legal counsel and the ALC directly regarding any approval requirements that could affect enforceability.