Purchase & Sale  ·  August 15, 2026

The Seller Backed Out. Can I Force the Sale?

You were in contract. Then the market moved, and the seller stopped returning calls — or found a reason to cancel that does not hold up, or simply refused to sign the escrow documents. In California, a buyer in that position is often not limited to suing for money. You can ask a court to order the sale.

California presumes land is unique

Civil Code section 3387 states that it is to be presumed that the breach of an agreement to transfer real property cannot be adequately relieved by pecuniary compensation. How strong that presumption is depends on the property and the buyer:

• A single-family dwelling the buyer intends to occupy: the presumption is conclusive. It cannot be rebutted. The seller may not argue money is an adequate substitute for the house.
• Everything else — commercial, multi-unit, investment property, non-occupying buyers: the presumption affects the burden of proof. It is rebuttable, but the defendant bears the burden of showing damages are adequate.

An investor’s profit motive does not defeat it. In Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 1563, the court held the trial court abused its discretion by denying specific performance solely because the buyer was an investor. California presumes all real property is unique, commercial and investment property included.

What you have to prove

The elements: inadequacy of the legal remedy; a contract that is reasonable and supported by adequate consideration; mutuality of remedies; terms definite enough for the court to know what it is enforcing; and substantial similarity between the performance sought and the performance promised.

In practice, two statutes decide most cases.

Civil Code § 3392 — you have to be able to perform

Specific performance cannot be enforced in favor of a party who has not fully and fairly performed all conditions precedent, except where the failure is only partial and either entirely immaterial or capable of being fully compensated.

This is where “ready, willing and able” lives. A buyer suing for specific performance must be prepared to prove ability to close — proof of funds, a loan commitment, reserves. It is the single most common failure point in buyer-side cases, and the reason to preserve financing documentation from the day the deal goes sideways rather than reconstructing it a year later.

Civil Code § 3391 — the seller's defense

Specific performance cannot be enforced against a party who did not receive adequate consideration, or where the contract is not as to that party just and reasonable, or where assent was obtained by misrepresentation, concealment, circumvention, or unfair practices, or given under mistake, misapprehension, or surprise.

A seller resisting in a rising market will argue the price has become unfair. The answer is that adequacy of consideration is measured at the time of contracting, not at the time of breach or trial. A deal that was fair when signed does not become unenforceable because the market moved.

Note also Civil Code section 3390, which bars specific enforcement of an agreement whose terms are not sufficiently certain to make the precise act to be done clearly ascertainable, and of an agreement to procure the consent of a spouse or other third person. Letters of intent and deals with open price or financing terms fail on definiteness. So does a contract that depends on a non-signing spouse’s consent.

The lis pendens is what actually stops the resale

A lawsuit alone does not prevent a seller from closing with someone else. A recorded notice of pending action does — by putting later purchasers and encumbrancers on constructive notice, with the claimant’s rights relating back to the recording date (Code of Civil Procedure section 405.24).

A specific performance claim qualifies as a “real property claim” under section 405.4 because it seeks to compel conveyance of title. A claim for money damages only does not, and a lis pendens supporting a damages-only complaint faces mandatory expungement.

The procedure is unforgiving:

• Section 405.21: an attorney of record may sign the notice; a self-represented party needs a judge’s approval.
• Section 405.22: before recording, serve a copy by registered or certified mail, return receipt requested, on all known addresses of adverse parties and all record owners per the latest assessment roll — then file a copy with the court immediately after recording.
• Section 405.23: the notice is void as to any party for whom those requirements were not met and a proof of service was not recorded with it. Service defects are a standard and frequently successful expungement argument.

The expungement motion is a merits preview

Section 405.30 puts the burden on the claimant — the opposite of ordinary motion practice. The court must expunge if the pleading does not contain a real property claim (section 405.31), or if the claimant has not established the probable validity of the claim by a preponderance of the evidence (section 405.32). Probable validity means it is more likely than not that the claimant will obtain judgment.

Which means a buyer may have to demonstrate, on declarations, within weeks of filing, that they are more likely than not to win — including proof of ability to perform under section 3392. These cases have to be documented and declaration-ready from day one.

Two more rules. Under section 405.35, an expungement order is not effective or recordable until the time for writ review has run, and if a writ petition is timely filed the order stays ineffective until that proceeding concludes — so the notice survives review. And under section 405.36, once a notice has been expunged, the claimant may not record another as to that property without leave of court. One shot.

Section 405.38 makes attorney fees mandatory to the party prevailing on any motion under the chapter, absent substantial justification or circumstances making an award unjust. Those fees run both ways and are independent of the purchase agreement’s fee clause. Recording an improper lis pendens carries real exposure.

If you take money instead

Civil Code section 3306 governs a buyer’s damages against a breaching seller: the price paid; expenses properly incurred in examining title and preparing the necessary papers; the difference between the price agreed to be paid and the value of the estate at the time of the breach; expenses of preparing to enter the land; consequential damages according to proof; and interest.

Two points about the history matter. The original 1872 statute allowed loss-of-bargain damages only where the seller acted in bad faith. The 1983 amendment deleted that qualifier — a California buyer now recovers benefit-of-the-bargain damages regardless of the seller’s good faith. But the amendment did not change the valuation date. Reese v. Wong (2001) 93 Cal.App.4th 51 holds the differential is measured at the time of breach, not at trial, regardless of later appreciation.

Before you file: the mediation rule

The C.A.R. Residential Purchase Agreement provides that a party who commences an action without first attempting mediation, or who refuses to mediate after a request, shall not be entitled to recover attorney fees — even if fees would otherwise be available.

California courts enforce this literally. Lange v. Schilling (2008) 163 Cal.App.4th 1412 held that a plaintiff who filed without first attempting mediation forfeited fees entirely despite prevailing, rejecting a substantial compliance defense. A request made after filing does not cure it. The plaintiff there spent roughly $113,000 in fees to recover a $13,000 judgment and recovered none of the fees.

There is a carve-out that matters here: filing a court action to preserve a statute of limitations or to enable recording a lis pendens is expressly excluded from the mediation obligation. So a buyer racing to record does not forfeit fees by filing first. Send the written mediation request at the same time anyway, and keep proof of delivery — a defendant who refuses a documented request forfeits fees too.

The first two weeks

1. Preserve the complete contract file — the purchase agreement with every counter-offer and addendum, all signed contingency removals and notices to perform, and the escrow instructions. Contingency removal has to be in writing and signed; deadlines passing does not waive a contingency by itself.
2. Document your ability to perform. Proof of funds, loan commitment, reserves. You may need it on declarations within weeks.
3. Serve a Notice to Seller to Perform if the seller is failing to deliver disclosures, complete agreed repairs, or sign escrow documents.
4. Send a written mediation request and keep proof of delivery and any refusal.
5. Get advice on the lis pendens before recording one. The service requirements are strict and the fee exposure under section 405.38 is real.
6. Move. The seller intends to resell. A notice recorded after the property closes to a third party is worth far less.

Our purchase and sale practice page covers deposit disputes, liquidated damages, and the rest of the framework. Consultations are free.

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