A breach of contract means breaking a binding legal document by failing to satisfy the terms of the contract without a lawful reason.
Breach of Real Estate Contracts Real estate disputes often arise because a party to the transaction has committed a breach of contract. A common dispute is when a seller wrongfully refuses to transfer title to the buyer or when either the buyer or seller has defaulted on a purchase agreement or other contract in connection to the real estate transaction. Unless otherwise limited by the legal document, there are four basic remedies available to the wronged party. LEARN MORE: https://www.oppenheimlaw.com/what-we-do/real-estate/breach-of-real-estate-contracts/ Money Damages In Florida, a buyer who breaches a sales contract may be liable to the seller for monetary damages. This is usually calculated as the difference between the contracted price and the market value (minus any deposits or other monies the breaching buyer has already given to the seller). The seller may alternatively bring an action for specific performance (described below). However, specific performance is usually more effectively used by a wronged buyer than by a wronged seller, the reason being that a breaching buyer will simply claim that he cannot financially satisfy a judicial decree requiring him to purchase the subject property. Termination of the Contract In some cases, the best remedy to seek is termination of the contract. This usually involves the buyer being refunded his or her deposit as well as expenses incurred during the failed transaction such as attorney fees, survey fees, title inspection fees and other costs of examination. Specific Performance of the Contract An action requesting specific performance involves a party asking the court to force the opposing party to perform their contractual obligations. A judge ruling that the seller MUST sell the house to the buyer is an example of specific performance being used as a remedy. Liquidated Damages Parties to a contract may want to agree in advance as to the amount that will be owed by a breaching party. This amount will be set forth in the contract and will not be disputed if a breach occurs. These are called liquidated damages. However, in order for liquidated damages to be enforceable, they cannot act as a form of punishment against the breaching party. Additionally, liquidated damages will usually only be enforceable if it is determined that calculating actual damages for the particular breach at issue is difficult and the liquidated damages are reasonable under the circumstances. An example of liquidated damages can be found in a standard residential sales contract that states that if the buyer fails to perform his/her obligations under the contract, the seller is entitled to keep the deposit. What happens if you breach a real estate contract? If you want out of a real estate contract and don't have any contingencies available, you can breach the contract. ... The seller could also decide to sue you for breach of contract. Some real estate contracts have a “liquidated damages” clause that states the maximum the seller can keep if the buyers breach the contract. What does breach of contract mean in real estate? A real estate contract contains many terms and conditions that are integral to the contract. A breach of contract occurs when a party to the contract, either oral or written, fails to perform any of the contract's terms. Can real estate contracts be broken? When you sign a real estate contract as either a buyer or a seller, you have committed yourself to an agreement that is legally binding. ... Fortunately, it is possible to break your contract. You just have to be prepared to deal with the consequences, whatever those happen to be Have an Experienced Real Estate Attorney It is important to have an experienced attorney, capable of formulating a winning strategy to handle your breach of contract case. Breach of contract cases are filled with obstacles. We will work with you, side-by-side, to help ensure you receive proper compensation from the wrongdoing of a buyer or seller. Our Breach of Real Estate Contracts Lawyers serve Fort Lauderdale, Broward County, Miami-Dade & Florida State. Please contact us online or by phone at 954-384-6114 to schedule a consultation. Oppenheim Law | Breach of Real Estate Contracts Attorneys 2500 Weston Rd #404 Fort Lauderdale, FL 33331 954-384-6114
Agreements and Contracts Aren’t Always the Same A court will look at your document to determine whether or not it is enforceable. Most importantly, they will want to determine if the agreement is a contract. To be a contract, there are specific requirements it must meet. One being that a party must extend an offer and the other party accepts that offer in the agreement. There must also be a bargain or exchange in promises, whether it is monetary, service, products, etc. Also, the terms must specify that they will use the court to enforce those terms. Enforcement and Fighting Breach Defenses Once the court has decided your agreement is a contract, they will then decide if it should be enforced. There are plenty of reasons a judge will decide not to enforce a contract. These decisions are designed to protect people from entering into unfair contracts. If the contract was overbearing, unfair or the party signs the contract without adequate capacity, then the court may choose to not enforce it, regardless if it is a legal contract or not. Contract Breach Defenses If the other party breaches your contract, then they may have a valid defense for doing so. Any type of threat, coercion or false statement made to the other party can be grounds for a legally acceptable breach. The courts look at business contracts carefully as well as the situation in which they were signed to determine whether or not the other party had a right to breach. The court will likely look for: -If the party signed under duress, meaning that they were threatened with serious actions unless they entered into the agreement. -Undue influence – the person was persuaded to sign into an unfair transaction due to the other person’s relationship to the signer. -One party misrepresented the facts, such as not disclosing information they had a legal duty to disclose.
In this video, I answer a viewer's question concerning a Prevailing Party clause referenced in an attorney's engagement letter.
Compensatory Damages Compensatory damages (or “actual damages”) are specifically meant to make up for the plaintiff’s losses. Plaintiffs may seek compensatory damages based on evidence of the losses, injuries, or harm they have suffered. The legal goal is to ensure that the injured party is “made whole again.” Compensatory damages come in two forms. Expectation damages aim to cover what the plaintiff expected to receive from the contract with calculations based on market values or the contract itself. Consequential damages refer to indirect damages that fall outside of the contract’s scope, but they may account for losses that occurred directly as a result of the breach. Punitive Damages As the name suggests, punitive damages serve as a punishment and a deterrent from possible breaches in the future. They are typically awarded in addition to compensatory damages. Punitive damages are rare, but they may be awarded to the breaching party in response to deliberate and harmful behavior. They may also be found in cases that overlap with fraud or tort law. Liquidation Damages Damages are sometimes included in the contract itself, determined during contract negotiations, and later used as a guideline in the event of a breach. These liquidated damages make it easier to determine the right monetary award in cases where it’s difficult to calculate the appropriate amount. Nominal Damages If a plaintiff can prove a breach of contract but didn’t lose money because of it, they may be awarded nominal damages. Nominal damages involve a token amount of money, such as one dollar, used to indicate that the plaintiff “won” the breach of contract claim. These damages are also rare in contract cases, which usually involve some form of loss, but they may also appear in cases that cross over with tort law.
Specific Performance Many times monetary awards do little to help the plaintiff receive what they paid for. In cases where a contractor has left work half-finished or poorly done, it could prove difficult to find another contractor willing to open themselves up to future liability issues and repair someone else’s poor craftsmanship. In cases like these, the court may find that ordering the breaching party to fulfill their original, contractual obligation via specific performance is the most appropriate and beneficial equitable remedy. Rescission Rescission of a contract is an equitable remedy imposed by the court in an effort to bring the parties as close to the position they were in pre-contract. This remedy obligates all parties to return any benefits they were allowed while the contract was enforced. While some jurisdictions use the terms “cancelling” and “rescinding” contracts interchangeably, the state of Florida reserves rescission for some of the following instances: -Mistake of fact or law -Actual or constructive fraud -Duress, coercion or undue influence -Lack of capacity In all of the above examples, a court may find rescission to be the most appropriate legal remedy, and would order any money exchanged to be returned and that no further legal action may be taken against the contract in question. Reformation In a situation where parties have entered into a contract and later find a discrepancy between the written terms of the contract and what the parties believed the terms to be, a court might impose reformation as a remedy. Reformation allows the court to change the wording of a contract when a mistake or ambiguity in the contract verbiage is found, or one or more parties fail to understand the expressed terms. The result is a legally binding re-written contract where all parties’ intentions are better expressed and understood.
Video: What Do Business Attorneys Do? FAQ’s With Roy Oppenheim Full Transcript: Hi, Roy Oppenheim here. One of the questions we sometimes get is, “What do business attorneys do?” And that’s a good question. Of course, it depends what kind of business you have. Do you have a small business that’s a sole proprietorship, that has no employees? How Big Is Your Business? Do you have a medium-sized business that has 10 or 15 employees with a bunch of independent contractors? Or do you have a large business with maybe over 100 employees? And so, obviously depending on how large your business is and how sophisticated and complex your business is, you will still probably need an attorney. Now, if you’re a sole proprietor, you know, the first question is why aren’t you incorporated? How Are You Protecting Yourself & Business? Why aren’t you an LLC? How are you protecting yourself from liability? What kind of insurance policies do you have? And of course, that flows through to your taxes. You know, are you paying taxes twice as a C corporation, or are you only paying taxes once is an S corp. or as an LLC? And then, if you’re in an LLC as a sole proprietor, are there other shareholders or members of your LLC? In Florida. If you’re not and you’re a sole proprietor LLC, meaning a single purpose LLC, single person LLC, you may not have liability protection that you think you have. Your accountant probably told you to form the LLC, but he probably didn’t tell you that you probably don’t have the protection if someone sues the company, they’re also going to probably sue you. And so the question is, you know, how do you manage all these different risks? And so the first thing the lawyer does is helps figure out what your risks are, and how to mitigate those risks. And the next thing that they do is, you know, you look at your contracts, your contracts that you’re entering into with vendors and your contracts that you’re entering into with customers. Those contracts are all negotiable. They all have to be drafted. And they all have to make sure that you’re properly protected. Then of course, if you have employees, now it starts to get complicated. You know, are you following all the laws concerning the way you treat employees in terms of overtime, sexual harassment, age discrimination? What Do Business Attorneys Do? It goes on and on. Are you following all those rules or requirements? And as the more employees you get, the more complicated those rules become. And so, your lawyer is going to, of course, make sure that you’re protected in all those areas. If you have independent contractors, have they signed non-disclosure agreements? Have they signed confidentiality agreements? Do you have non-competition agreements? I could go on and on. And then of course, assuming you become successful, you will have a target on your back and you’ll eventually be sued. You won’t be sued necessarily for something you did wrong. You’ll be sued because you have a target on your back. And once you understand that, you’ll need to make sure that you have a business lawyer who understands that also and can help you navigate through those risks. I always tell clients that it’s a badge of honor when they start getting sued as a business because it means that people perceive them as successful. You don’t sue unsuccessful people because you never collect. Only people who are successful get sued. And so, if you do get sued, obviously you want to defend yourself. At the same time, you may want to sue someone; maybe someone who screwed you out of a contract. Maybe a client of yours went bankrupt. I mean, you know, there could be numerous issues where you’re going to need an attorney. You could have an employee who steals clients or customers, or steals confidential information. You have intellectual property that you want to protect, whether its patents, trademarks, copyrights, it goes on and on. I’m not listing everything here. I’m just giving you an example of my average day as a business lawyer, as a real estate lawyer, what I, you know, assist clients with on a daily basis. And of course, you have all the regulations that you have to go through, depending on whether, you know, you have a liquor license, whether you a restaurant, whether you sell stuff that people eat, and whether you have cars on the road, trucks on the road, whether you have drones in the air. I mean it goes on and on in terms of what kinds of regulations and rules you’re going to need to follow. That’s what a business lawyer does. Oppenheim Law | Business Attorneys Fort Lauderdale 2500 Weston Rd #404 Fort Lauderdale, FL 33331 954-384-6114 Originally posted on Oppenheim Law: https://www.oppenheimlaw.com/news-resources/videos/what-do-business-attorneys-do/ (What Do Business Attorneys Do? )