## Facts

- A seller (Ash Park, LLC) and a developer-buyer (Alexander & Bishop, Ltd.) contracted for the sale of vacant commercial land for $6.3 million.
- The offer to purchase included a leasing contingency allowing the buyer to terminate and recover $50,000 earnest money if it did not secure an anchor tenant by July 20, 2007, with paid extension options.
- The contract contained a clause allowing either party to seek specific performance for breach.
- The buyer timely invoked the leasing contingency on July 20, 2007, which would have ended the contract and required return of the earnest money.
- On August 1, 2007, the parties executed a reinstatement agreement: the $50,000 earnest money became nonrefundable, the buyer paid an additional nonrefundable $25,000 extension fee, and both amounts would apply to the purchase price at closing; the offer to purchase was reinstated as modified.
- In October 2007, the buyer reported that its intended anchor tenant would not proceed until at least 2008.
- The buyer refused to close by the December 14, 2007 closing date.
- The seller sued for specific performance and sought interest on the purchase price from the contractual closing date.

## Issues

1. Whether a seller seeking specific performance of a land-sale contract must first prove that legal damages are inadequate under Wisconsin law.
2. Whether Wisconsin law should be changed to impose a threshold “inadequate remedy at law” requirement or other limits on specific performance in land-sale cases.
3. Whether the buyer’s asserted inability to obtain financing due to the loss of an anchor tenant constitutes impossibility that bars specific performance.

## Decision

- The Wisconsin Supreme Court affirmed the order granting summary judgment to the seller and requiring specific performance.
- The court held that, in Wisconsin land-sale contracts, a seller need not make a separate showing that damages are inadequate before specific performance may be ordered for the buyer’s breach.
- The court concluded the circuit court did not erroneously exercise its discretion in determining that specific performance was an appropriate equitable remedy on the record presented.
- The court declined to revise Wisconsin doctrine to require an “inadequate damages” threshold or to make damages the presumptive remedy for land-sale breaches.
- The court rejected the buyer’s financing-based impossibility argument; financial inability does not constitute legal impossibility sufficient to defeat specific performance.
- The affirmance left intact the award of interest as part of the specific-performance remedy.

## Legal Principles

- In Wisconsin, specific performance is the ordinary remedy for breach of a contract to convey real property, available to sellers and buyers, subject to equitable defenses.
- A seller is not required to prove the inadequacy of legal damages as a prerequisite to obtaining specific performance for a buyer’s breach of a land-sale contract.
- A contractual provision authorizing specific performance supports, but does not control, the equitable decision to order specific performance.
- “Impossibility” in equity requires objective impossibility; lack of financing or financial hardship generally does not bar specific performance.
- Appellate review of a circuit court’s decision to grant specific performance is for erroneous exercise of discretion.

## Conclusion

The court reaffirmed Wisconsin’s rule that specific performance is the preferred remedy for breached land-sale contracts and held that a seller may obtain that remedy without first proving damages are inadequate; alleged inability to finance the purchase does not amount to impossibility that defeats specific performance.


Ash Park, LLC v. Alexander & Bishop, Ltd., 324 Wis. 2d 703, 783 N.W.2d 294 (Wis. 2010)