Creative Attack on Buyer’s Right to Specific Performance in New Hampshire Real Estate Contracts Rejected
Does a buyer seeking to purchase an income-producing property still get specific performance in New Hampshire?
Background
In September 2021, a prospective buyer entered into a purchase and sale agreement with a seller for a twelve-unit apartment building in Manchester, New Hampshire. The agreed price was $1.3 million. The agreement required the buyer to meet a financing contingency by November 26, 2021 and set a closing date on or before November 30. Time was expressly made of the essence.
The agreement permitted the seller to respond to the buyer’s failure to meet the financing deadline in two ways. The seller could declare a default or treat the financing contingency as waived.
After obtaining conditional loan approval subject to a lender‑required appraisal that could not be completed by November 26, the buyer informed the seller that it would miss the financing deadline. Despite that deadline lapse, the parties continued coordinating toward a December closing. Days later, the seller terminated the agreement and sought to return the deposit. The buyer filed suit seeking specific performance.
Superior Court
The seller argued that monetary damages were adequate because the buyer intended to purchase the property as an investment. It contended that ordering specific performance was outdated in modern commercial real estate transactions.
The trial court disagreed. After a jury found that the seller breached the agreement, the court ordered specific performance and required the parties to close. The seller appealed.
Supreme Court
On appeal, the seller urged the Court to narrow New Hampshire’s traditional presumption favoring specific performance in real estate sale disputes. It argued that where property is acquired solely as an investment, lost‑profit damages should suffice because the buyer lacks any personal or sentimental attachment that would make conveyance uniquely valuable.
The Supreme Court rejected that argument and reaffirmed that New Hampshire law presumes monetary damages are inadequate for breach of a real estate contract due to the unique nature of real estate, without requiring a buyer to demonstrate personal or sentimental value. The Court declined to carve out an exception for commercial or income‑producing property and emphasized that altering the longstanding presumption favoring specific performance would inject uncertainty into real estate practice and undermine settled expectations on which parties rely when negotiating real estate sale contracts.
Addressing the seller’s equity‑based framing, which relied on older case law discussing a buyer’s “particular liking to the land,” the Court also endorsed the trial court’s observation that both buyer and seller treated the property as income‑producing rental property. The record supported the conclusion that the seller terminated the purchase and sale agreement because the contract price no longer appeared advantageous, not because of any equitable hardship. On those facts, the Court concluded there were no circumstances that would justify denying specific performance.
Key takeaway
Specific performance remains the default remedy for breached real estate contracts in New Hampshire, regardless of whether the buyer is an investor or end user. Sellers cannot assume that lost-profit damages will substitute for conveyance. For practitioners, the decision confirms that deal certainty still matters more than market regret, and that courts will enforce bargains even when prices move.
J&C Properties, LLC v. Rayster Realty, LLC, 2026 N.H. 12.
For assistance with purchase and sale agreements,real estate and civil litigation, please contact Alfano Law at (603) 856-8411 or by filling out our Contact Form. The firm offers free or low-cost initial consultations for most matters.