§6.8 - Enforcement

• Jurisdiction: Washington

§6.8ENFORCEMENT

This section discusses procedures for bringing an action in Washington courts to enforce a contract through the remedy of specific performance.

(1) Venue and parties

An action for specific performance, as an action "affecting the title" to real property, generally must be filed in the county in which the real property is located. RCW 4.12.010. An action for specific performance and damages is transitory and may be brought in a different county when deeds have been given and are not in dispute and the buyers are seeking to enforce representations and warranties of the seller. Consequential damages awarded to make the nonbreachingparty whole begin to accrue from the date upon which performance should have occurred. Cornish College of the Arts v. 1000 VirginiaLtd. P'ship, 158 Wn.App. 203, 242 P.3d 1 (2010). Oestreich v. Ocean Shores Estates, Inc., 83 Wn.2d 143, 516 P.2d 507 (1973).

All persons whose rights in the property will be directly affected by the decree are necessary parties to an action for specific performance. McLean v. Archer, 32 Wn.2d 234, 201 P.2d 184 (1948). Specific performance may be granted with respect to subsequent purchasers when the subsequent purchasers have notice of the rights of another under a contract conveying an interest in land. Berg v. Ting, 125 Wn.2d 544, 886 P.2d 564 (1995). A decree of specific performance may affect the rights of a third party who is not a party to the action as long as compensation is provided for the interests of that party. Esmieu v. Hsieh, 20 Wn.App. 455, 580 P.2d 1105 (1978), aff'd, 92 Wn.2d 530, 598 P.2d 1369 (1979).

A right to specific performance will not be discharged in a bankruptcy proceeding if money damages will not remedy the breach as much as specific performance. Crafts v. Pitts, 161 Wn.2d 16, 162 P.3d 382 (2007).

(2) Election of remedies

Pleading in the alternative for specific performance, liquidated damages, or actual damages is permissible and does not constitute an election of remedies. Noble v. Ogborn, 43 Wn.App. 387, 717 P.2d 285, review denied, 106 Wn.2d 1004 (1986). When a contract provides that upon the buyer's default the seller may elect to declare a forfeiture, cancel the contract, and retain all payments previously made as liquidated damages, the seller retains the right either to require specific performance or to sue for damages if he or she elects not to cancel the contract and retain the deposit. Reiter v. Bailey, 180 Wash. 230, 39 P.2d 370 (1934). In Kofmehl v. Steelman, 63 Wn.App. 133, 816 P.2d 1258 (1991), appeal after remand, 80 Wn.App. 279 (1996), the seller served a notice of intent to forfeit a real estate contract, but later changed his mind and commenced an action for specific performance. The court held that because the forfeiture had not been completed by the appropriate filing of a notice of forfeiture, the seller was free to pursue specific...