Agreement For Specific Performance Precludes Actual Damages Claim

In settling an environmental contamination claim, the property owner agreed to accept a cash payment and the environmental company agreed to perform remediation work. The settlement documents provided that the owner's remedy was in specific performance, to require the remediation company to do its work. Unhappy with the remediation, the owner instead declined to demand or require specific performance, had the property demolished, and then sought money damages. The trial judge turned the owner down, and the Massachusetts Appeals Court agreed.

The appellate court quoted an argument made by the defendants, that the owner "cannot create a condition which prevents specific performance, and then demand monetary damages in its place." If the parties agreed that specific performance was the owner's remedy, the owner would be held to that agreement. Even if the owner believed the remediation to have been performed improperly, taking action to frustrate the agreed remedy was