Default Remedies - What Happens if it All Goes Wrong?
Louisiana REALTORS • March 16, 2020
DEFAULT REMEDIES IN THE
LOUISIANA RESIDENTIAL AGREEMENT TO BUY OR SELL
WHAT HAPPENS IF IT ALL GOES WRONG?
By: Patricia B. McMurray, JD and Melissa Grand, JD
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
450 Laurel Street, Chase Tower North, 21st Floor
Baton Rouge, Louisiana 70801
Consider this scenario: Buyer Boudreaux finds the house of his dreams. The house is owned by Seller Sabine. After negotiations, Boudreaux and Sabine sign the Louisiana Residential Agreement to Buy or Sell (the “Agreement”). Then it all goes wrong. Sabine defaults under the Agreement. What can Boudreaux do now?
The Agreement has several available remedies for the buyer and seller in the event of default. The options include (1) declaring the Agreement null and void, (2) termination of the Agreement, (3) specific performance, and (4) stipulated damages. Other potential remedies include return of the deposit, and recovery of broker fees, attorney’s fees and costs.
DECLARE THE AGREEMENT NULL AND VOID
In the event of default, a buyer or seller may declare the Agreement null and void. The Agreement provides in Lines 258-260:
Further, the Agreement provides in Lines 268-270
This means that, in our scenario, Boudreaux can declare the Agreement null and void. Boudreaux and Sabine would both walk away from the sale.
TERMINATION OF THE AGREEMENT
In the event of default, a buyer or seller may seek to simply terminate the Agreement.[1] The Agreement provides in line 262:
Further, the Agreement provides in Line 270:
In our scenario, Boudreaux can file a lawsuit and request an order from the Court terminating the Agreement.
SPECIFIC PERFORMANCE
Upon default, a buyer or seller may also require specific performance under the Agreement. The Agreement provides in Line 262:
Further, the Agreement provides in Lines 270-271:
Specific performance is a Court ordered remedy with the goal being to put the damaged party back into a position as if the breach in contract never occurred.[2] This means that a buyer or seller may seek specific performance of completion of the home sale. So, Boudreaux can file a lawsuit requesting the Court to order Sabine to sell the home to Boudreaux.
If a Court determines that specific performance is not practical under the circumstances, a Court may alternatively award money damages.[3] In our scenario, if the Court finds that ordering Sabine to sell the home to Boudreaux is not practical, the Court may alternatively award Boudreaux money damages.
STIPULATED DAMAGES
The Agreement contains a stipulated damages clause.[4] The Agreement provides in Lines 262-263:
The Agreement provides in Lines 271-272:
The stipulated damages provision is provided in part to eliminate the need for a calculation of damages if the seller or buyer defaults; however, some courts have required a seller or buyer to provide proof of damage. Stipulated damage clauses are designed to both fix the amount of the damages caused by nonperformance of an obligation and to encourage performance of the obligation.[5]
A stipulated damages clause is for recovery of damages to compensate the wronged party for his or her loss. Stipulated damages are not punitive damages or damages intended to “punish” the defaulting party.
The Agreement provides that a buyer or seller may demand and/or sue to terminate the Agreement and for 10% of the Sale Price as stipulated damages. However, if the clause is challenged, the Court must determine the reasonableness of the amount stipulated in the contract by asking whether the parties attempted to approximate actual damages when they agreed to the stipulated damages provision of the Agreement.[6]
In our scenario, Boudreaux can file a lawsuit requesting the Court to order Sabine to pay 10% of the Sale Price to Boudreaux. If Sabine contests the stipulated damages clause, the Court will examine the reasonableness of the stipulated amount in making an award. This means the Court may award less than 10% of the Sale Price to Boudreaux.
DEPOSIT
The wronged party may also seek a return of the Deposit (in the case of the seller’s default) or to retain the Deposit (in the case of the buyer’s default).[7] The Agreement provides in Line 264:
The Agreement provides in Line 274:
Boudreaux’s lawsuit can ask the Court to order Sabine to return his deposit to Boudreaux.
BROKER FEES
The Agreement specifically provides that the seller or buyer may seek recovery of his or her Broker fees.[8] The Agreement provides in Lines 265-266:
Further, the Agreement provides in Lines 275-276:
So, Boudreaux may ask the Court to order Sabine to pay Boudreaux’s Broker fees.
A court has discretion in awarding Broker fees to the prevailing party,[9] so Boudreaux is not guaranteed to be successful in his request.
ATTORNEY FEES AND COSTS
In Louisiana, a party may recover attorney’s fees from an opposing party only in two specific instances: (1) where there is a contract between the disputing parties that explicitly provides for payment of the attorney’s fees incurred by the opposing party, or (2) where a specific Louisiana statute requires the payment of the opposing party’s attorney’s fees.[10]
The Agreement specifies that the prevailing party in litigation to enforce any provision of the Agreement “shall” be awarded their attorney’s fees and costs.[11] The Agreement provides in Line 265:
Also, the Agreement provides in Line 275:
In our scenario, Boudreaux hired a lawyer to file his lawsuit against Sabine. In the lawsuit, Boudreaux can request that the Court order Sabine to pay Boudreaux’s attorney’s fees and costs.
DISCLAIMER
These materials are to be used for informational purposes and should not be construed as specific legal advice. These materials are not designed to cover every aspect of a legal situation for every factual circumstance that may arise regarding the subject matter included.
This publication is for reference purposes only and association members or other readers are responsible for contacting their own attorneys or other professional advisors for legal or contract advice. The comments provided herein solely represent the opinions of the authors and is not a guarantee of interpretation of the law or contracts by any court or by the Louisiana Real Estate Commission.
[1] See Agreement, line 262.
[2] La. Civ. Code art. 1986 provides:
Upon an obligor’s failure to perform an obligation to deliver a thing or not to do an act, or to execute an instrument, the court shall grant specific performance plus damages for delay if the obligee so demands. If specific performance is impracticable, the court may allow damages to the obligee.
Upon a failure to perform an obligation that has another object, such as an obligation to do, the granting of specific performance is at the discretion of the court.
[3] Id.
[4] See Agreement, lines 258-276.
[5] See Philippi v. Vigueric, 606 So. 2d 577 (La. App. 5th Cir. 1992).
[6] See Camey v. Boles, 25, 905 (La. App. 2d Cir. 9/21/94) 643 So. 2d 339 writ denied. 94-2592 (La. 12/16/94) 648 So. 2d 391.
[7] See Agreement, lines 264 and 274.
[8] See Agreement, lines 266 and 276.
[9] See Whitbeck v. Champagne, 2014-245 (La. App. 3 Cir. 10/1/14), 149 So. 3d 372, 386.
[10] See generally Dipaola v. Municipal Police Employees’ Retirement System, 2014-0037 (La. App. 1 Cir. 09/25/14); 155 So.3d 49, 52, writ denied, 2014-2575 (La. 02/27/15); 159 So.3d 1071.
[11] See Agreement, lines 264-265 and 274-275.

Week 10 brought meaningful movement on several Louisiana REALTORS® priorities affecting real estate, property rights and insurance. And Week 11 is shaping up to be one of the most important stretches of the session. The biggest developments last week were the final Senate passage of HB 468 by Rep. Troy Hebert with amendments, movement of HB 1027 by Rep. Hebert to the Governor for executive approval, continued Senate progress on HB 1187 and HB 1166 , and final legislative action on SB 180 . REALTOR® Day at the Capitol also came at an important time, giving members the opportunity to reinforce industry priorities with legislators as several key bills neared final passage or awaited committee, concurrence or floor action. Just as importantly, the Louisiana REALTORS® legislative package has now cleared most of its major hurdles, and barring any late-session surprises, the remaining package’s bills should be headed to the Governor’s desk shortly. On the core real estate package, HB 468 , the wholesale regulation bill, remains the most immediate priority. The Senate passed the bill 34-0 on May 12 with amendments, and it now returns to the House for concurrence. That places it in a fast-moving posture, and members should be prepared for quick House action once concurrence is called. HB 1027 , the appraiser liability bill, has now moved into final executive posture after passing the Senate 35-0 without amendments and being sent to the Governor. Together, those two bills represent major wins for consumer protection, market integrity and greater certainty in the real estate transaction process. Insurance remains one of the busiest and most important policy areas as we head into Week 11. HB 1187 , dealing with Louisiana Citizens for emergency assessments, was reported favorably by the Senate Insurance Committee and is now pending Legislative Bureau for review in the Senate. HB 759 , addressing fortified roof endorsement offers, remains one of the more important insurance and mitigation bills still in play and is positioned for Senate floor action. HB 408 , which would prohibit insurers from non-renewing residential policies when homeowners timely mitigate risks, remains pending in House Insurance, as does HB 1210 , which would create a mandatory pre-suit claim review process for residential property insurance. Additional insurance measures, including HB 850 on Standard Fire Policy cancellation notices, HB 1162 on contractor verification in insurance claims, and SB 241 on adjuster and appraiser license-number disclosure, also remain active. These bills continue to matter because insurance affordability, mitigation, claims handling and policy stability remain central to property ownership and transaction viability across Louisiana. On disclosure and regulatory matters, HB 1166 by Rep. Kim Carver , requiring disclosures for vacant residential property and carrying out the adopted LREC reform amendment, was reported favorably by the Senate Commerce Committee and is now pending with the Legislative Bureau for review in the Senate. That keeps the bill in a strong position for Senate floor movement and makes it one of the key bills to watch in Week 11. SB 180 , allowing a surviving spouse of a deceased disabled veteran to transfer an expanded property tax exemption under certain circumstances, has completed legislative action and is now in final processing. Week 10 and the run into Week 11 also reflected an important defensive win for Louisiana REALTORS®. Our team successfully worked to block and tackle HB 617 and HB 750 to ensure real estate and nonprofit activity were not swept into overly broad consumer protection frameworks. On HB 617 , Louisiana REALTORS® opposed the bill as drafted and worked to posture it so that real estate professionals would not be caught up in a fee-disclosure framework that does not fit the realities of real estate transactions. On HB 750 , we worked to ensure the bill would not be interpreted to reach real estate or nonprofit operations in a way that could create unintended compliance burdens for leases, property management arrangements, association activity, or recurring charges authorized under those structures. That effort helped keep broad subscription-style language from bleeding into housing and nonprofit operations where it plainly does not belong. Civil justice and broader property rights measures also remain active entering Week 11. HB 437 , dealing with expert witness fees, and HB 1089 , creating CARE Accounts for certain damages arising from delictual actions, remain pending in Senate Judiciary A and remain high-priority tort reform measures to watch. HB 472, the rent stabilization bill, remains involuntarily deferred and stays on the watch list for any attempted revival through another vehicle or amendment. Additional redevelopment and tax-related measures, such as HB 214 and HB 217, also remain relevant to the broader conversation on blight, reinvestment and neighborhood stabilization. A few additional housing and valuation bills are also worth noting HB 292 on security deposits, HB 297 on early lease termination in stalking and cyberstalking situations, and HB 300 on appraisal thresholds for bank-owned property have all advanced and remain part of the broader housing policy landscape. The practical takeaway is straightforward: Week 11 will likely move fast, and late-session maneuvering can matter as much as headline floor votes. Louisiana REALTORS® should be prepared for House concurrence on HB 468 , further Senate movement on HB 1166 and HB 1187 , continued action on insurance and tort reform, and the possibility of late amendments or procedural pivots on bills affecting real estate transactions, private property rights, housing affordability, nonprofits, property managers and the broader real estate industry. The package is in strong shape, but this is the point in the session when the finish line comes into view and traffic gets thick. Please view the weekly bill tracking report provided by our lobbying team over at Harris, DeVille and Associates.

Week 9 brought several major Louisiana REALTORS® priorities into posture as the Legislature moved deeper into the final stretch of the session. Two of our top priority bills, HB 468 and HB 1027 both by Representative Troy Hebert , cleared the Legislative Bureau and advanced to the Senate floor calendar for third reading and final passage. HB 468, our residential wholesaling regulation bill, remains one of the most important consumer protection measures of the session. The bill brings transparency, accountability, and clear rules of the road to residential real estate wholesaling in Louisiana. HB 468 previously passed the House by a vote of 96–0 and is now positioned for final Senate consideration. HB 1027, which clarifies that licensed real estate appraisers are not liable for a seller’s failure to comply with carbon monoxide detector requirements, also advanced to the Senate floor calendar after previously passing the House by a vote of 90–0. Both bills remain in strong posture, and Louisiana REALTORS® will continue working for final passage as they move through the Senate. Another major development this week was the House passage of HB 1166 by Representative Kim Carver , which passed unanimously on May 5, 103–0. HB 1166 creates a practical disclosure framework for vacant residential property transactions and is designed to help buyers, sellers and real estate professionals avoid late-stage surprises involving access, utilities, drainage, flood risk, prior use and other material property conditions. This bill has been a key part of Louisiana REALTORS®’ consumer protection and transactional clarity agenda. HB 1166 was received in the Senate on May 7 and now moves into the Senate side of the process, where Louisiana REALTORS® will continue working closely with the author and stakeholders as the bill advances. Tort reform and civil justice issues also moved forward this week. HB 437 by Representative Michael Melerine , which addresses the award of expert witness fees in civil litigation, passed the House by a vote of 75–18 and was received in the Senate on May 7. HB 1089 by Representative Dennis Bamburg Jr. , which creates structured CARE Accounts for certain categories of tort damages, passed the House by a vote of 67–29 and was also received in the Senate. Louisiana REALTORS® continue to support meaningful tort reform as part of the broader effort to improve Louisiana’s legal environment, reduce litigation-driven costs, and help stabilize the property insurance market. A more predictable civil justice system directly supports property owners, consumers, businesses and the long-term health of Louisiana’s real estate market. Property insurance remains one of the most important issues facing homeowners and property owners across the state. HB 1187 by Representative Paul Sawyer , dealing with Citizens Property Insurance emergency assessments, has been received in the Senate and referred to the Senate Insurance Committee after previously passing the House by a vote of 87–9. Several additional insurance-related measures remain active, including bills addressing fortified roof endorsements, stated-value homeowner policies, insurance notice requirements, nonrenewal restrictions, and pre-suit claim review. HB 408 , which addresses insurance nonrenewal prohibitions, and HB 1210 , which addresses mandatory pre-suit claim review, remain pending in the House Insurance Committee. Louisiana REALTORS® will continue to closely monitor these measures because insurance affordability, availability and market stability remain central to housing affordability and private property ownership in Louisiana. Several Senate bills also continued moving through the House processes this week. SB 241 by Senator Valarie Hodges , which requires insurance adjusters and appraisers to include their license numbers in written communications, cleared the Legislative Bureau on May 6 and returned to the House floor calendar. This measure remains relevant to transparency, accountability, and consumer confidence in the insurance claims process. SB 180 by Senator Franklin Foil , which allows surviving spouses of deceased disabled veterans to transfer their expanded property tax exemption, was scheduled for House floor debate this week and remains a positive homeowner protection and property tax fairness measure. Louisiana REALTORS® also continues to monitor legislation dealing with blight, redevelopment and rent stabilization. HB 284 by Representative John Wyble , which would authorize certain parishes and municipalities to expropriate blighted property by declaration of taking, remained on the House calendar this week as a notice-given, subject-to-call bill. The bill previously failed on the House floor by a narrow vote of 48–47 and remains under active reconsideration. Blight policy is important, but redevelopment tools must be balanced with private property rights, due process, and protections for property owners. HB 472 by Representative Alonzo Knox , which would authorize municipalities to implement rent stabilization programs, remains involuntarily deferred in committee. Louisiana REALTORS® continues to oppose rent control and rent stabilization proposals in any form because these policies reduce housing supply, discourage investment, and ultimately worsen affordability challenges over time. As we move into Week 10, Louisiana REALTORS® will remain focused on securing final Senate passage of HB 468 and HB 1027, advancing HB 1166 through the Senate, and continuing to engage on the tort reform and insurance measures that directly affect property owners, housing affordability and the real estate profession. With REALTOR® Day at the Capitol taking place during this critical stretch of the session, member engagement will be especially important as legislators continue to make decisions on real estate, insurance, liability, redevelopment and private property rights issues. Please view the weekly bill tracking report provided by our lobbying team over at Harris, DeVille and Associates.

Week 8 was one of the most consequential weeks of the session so far for Louisiana REALTORS® and the real estate industry. Two of the association’s flagship bills moved to the brink of final Senate action, rent stabilization was stopped again in committee, major insurance legislation continued to advance, and several bills affecting property rights, tort reform and transaction practice saw meaningful movement. The biggest developments of the week came on HB 468 and HB 1027 , both by Rep. Troy Hebert . HB 468 , the residential wholesaling bill, cleared the Senate Commerce Committee on April 28, had its amendments adopted on April 29, and was referred to the Legislative Bureau putting it one step away from the Senate floor. HB 1027 , the appraiser liability bill, followed the same path after its overwhelming House passage earlier this month and is also now pending Legislative Bureau review before final Senate consideration. Louisiana REALTORS® strongly supports both measures, which are designed to strengthen consumer protection, improve market clarity and reinforce confidence in the real estate transaction process. On the rent-control front, HB 472 by Rep. Alonzo Knox was brought back before the House Municipal, Local and Parochial Affairs Committee this week. Louisiana REALTORS® testified in opposition, and the committee voted 8-5 to defer the bill involuntarily. That is a meaningful win for property owners, housing providers, and the long-term health of Louisiana’s housing market. Louisiana REALTORS® remains firmly opposed to rent stabilization proposals, which may sound politically attractive, but have consistently been tied to reduced housing supply, deterioration in rental stock and long-term affordability problems in markets where they are adopted. Insurance remained one of the session’s most active and important policy areas. HB 1187, Rep. Paul Sawyer , dealing with Louisiana Citizens for emergency assessments, passed the full House 87-9 on April 29, and now heads to the Senate. Because Citizens' assessments can ultimately affect policyholders across the state, this bill has clear relevance for affordability and homeownership costs. HB 408, Rep. Edmond Jordan was heard in House Insurance Committee this week and remains pending. This bill would prohibit insurers from non-renewing residential policies when homeowners have taken documented steps to reduce risk, an issue with direct implications for insurability and failed closings in vulnerable markets. In addition, SB 241 by Sen. Valarie Hodges , which requires insurance adjusters and appraisers to include their license numbers in written communications, cleared House Insurance unanimously and is now headed to the House floor. Taken together, these measures reflect the legislature’s continued focus on insurance stability, transparency and accountability, all of which remain central to real estate activity in Louisiana. Week 8 also brought movement on broader tort reform and property-rights-related legislation. HB 437 , addressing expert witness fees, and HB 1089 , creating structured CARE Accounts for tort damages, both cleared House Civil Law and are now set for House floor debate next week. Meanwhile, SB 180 by Sen. Franklin Foil , allowing surviving spouses of disabled veterans to transfer a property tax exemption, is nearing final House passage after advancing to third reading. While not all of these bills directly regulate licensees, they reflect the broader civil liability and property tax environment that affects the cost and accessibility of owning property in Louisiana. Another key bill for the industry, HB 1166 by Rep. Kim Carver , remains very much alive and is now positioned for House floor debate on Tuesday, May 5 . The bill would require disclosures for vacant residential property, and it would close an existing gap in Louisiana law that currently exempts many vacant homes from standard seller disclosure rules. After being called and returned to the calendar earlier in the week, the bill is now finally set for debate. Louisiana REALTORS® also intends to use the bill as a vehicle for a structural amendment to the Louisiana Real Estate Commission that would move toward a more geographically balanced appointment process, with one member appointed from each congressional district and the remaining members appointed at large. That change would better ensure regional representation across Louisiana’s diverse real estate markets and help modernize the commission’s structure. Taken together, week 8 was a strong and consequential week for Louisiana REALTORS®. The association’s two flagship bills are now within reach of Senate floor passage, rent stabilization was turned back in committee, important insurance legislation continued moving, and HB 1166 remains positioned as both a major disclosure bill and a possible vehicle for meaningful LREC reform. Louisiana REALTORS® remains fully engaged at every stage of the process to protect private property rights, support practical regulation and advance policies that strengthen Louisiana’s real estate market. Lastly, this week, Louisiana REALTORS® wants to extend sincere thanks to Rep. Delisha Boyd — a real estate broker herself — for her tireless work shepherding HB 292 through the legislative process. The security deposit fairness bill, which allows landlords and tenants to mutually agree in writing to extend the timeline for returning a security deposit when damage is found, has passed to third reading and final passage in the Senate and is nearly on its way to the Governor's desk. This has been a meaningful win for both property owners and renters across Louisiana. Please view the weekly bill tracking report provided by our lobbying team over at Harris, DeVille and Associates.
















