789 NE2D 1025 - Humphries v. Ables

KIRSCH, Judge,

¶1concurring in part and dissenting in part.

¶2I fully concur in the majority decision regarding the issues of fraud and marketable title; from its decision regarding specific performance, however, I respectfully dissent. I believe that specific performance of a real estate contract is proper only where the remedy at law is inadequate. While specific performance may be granted as a matter of course to the purchaser because real estate is unique, in the typical case 12 the seller's remedy at law in *1037the form of an action for money damages will be sufficient to fully compensate the plaintiff. I see nothing in the facts of this case to indicate that the sellers have an inadequate remedy at law to justify the grant of specific performance.

¶3. In some instances, we have affirmed the grant of specific performance to the seller where it was shown that the remedy at law will not suffice. Thus, in Ridenour v. France, 442 N.E.2d 716 (Ind.Ct.App.1982), specific performance was found appropriate where the house located on the property had been destroyed by fire after the risk of loss had passed to the buyers. Similarly, in Salin Bank & Trust Co. v. Violet U. Peden Trust, 715 N.E.2d 1003 (Ind.Ct.App.1999), specific performance to the vendor was found appropriate in a real estate option contract where the purchaser had possession of the real estate for a number of years and had significantly changed the character of the property incor*1037porating the commercial building which was the subject of the option contract into two other building which the purchaser owned.