The Vault

January 2001
Coburn Dewees Berry

What can a contract purchaser do when the tract of land to be acquired is not as large as both parties anticipated?  If the acreage disparity is great or the sale is "by the acre," the purchaser may rescind the contract.  77 Am.Jur.2d, Vendor & Purchaser § 116 (1997); c.f., Mills v. Brown, 568 S.W.2d 100 (Tenn. 1978).  Most of the time, though, rescission is not what the purchaser wants.  The purchaser's preferred remedy is usually specific performance with an abatement in price.  This remedy is available to the purchaser under Tennessee law.

As a general rule, a purchaser under a contract for the sale of real estate is entitled to the full amount of land that the purchaser contracted to buy and may not be compelled by the vendor to accept anything substantially less.  Nevertheless, even if the vendor is unable to convey the full amount of property the vendor contracted to sell, the purchaser may elect to take what the vendor has.  It is often stated that courts will not permit the vendor to object to this on the ground that the vendor does not have the whole estate the vendor bargained to sell, but will compel the vendor, if the purchaser so chooses, to execute so much of the contract as the vendor is able, allowing the purchaser to have abatement in the purchase price sufficient to compensate the purchaser for the deficiency in quantity.  71 Am.Jur.2d Specific Performance, § 116 (1973).

The courts of Tennessee have long recognized this general rule.  In the case of Richardson v. Snipes, 46 Tenn. App. 494, 330 S.W.2d 381 (1960), it was noted that "where a contract is entered into for the sale of real estate and the seller is unable to convey all the land contracted for, the buyer may nevertheless enforce specific performance for that portion that the seller cannot convey."  46 Tenn. App. at 494, 330 S.W.2d at 388.

Similarly, in the case of Collins v. Senter, 38 Tenn. 251 (1858), it was held that if a purchaser is content to take part of the land sold when the vendor cannot make title to the whole, the purchaser is entitled to specific performance as to that part and to have an abatement in price.  Collins was a case involving a deficiency in title, but the rule adopted therein applies with equal force to a deficiency in acreage, 71 Am.Jur.2d, supra. 

The nature or form of the sale contemplated by a contract may affect a purchaser's right to relief.  That is to say, a purchaser may not be entitled to relief if the sale is considered to be "in gross," i.e. where a specific tract is sold by name or description and quantity is not of primary significance.  But even if the sale is in gross, where the amount of acreage is great and beyond what the parties could have contemplated, a court is still justified in awarding an abatement in purchase price along with specific performance.  Cauhron v. Stinespring, 132 Tenn. 636, 179 S.W. 152 (1915); 77 Am.Jur.2d Vendor and Purchaser § 103 (1997). 

Although relief is sometimes available when a sale is in gross, it is more readily obtainable when a sale by the acre is involved.  Whether a sale is by the acre or in gross may be determined by several factors..