Home Buying in Indianapolis>Question Details

Adl, Home Buyer in Indianapolis, IN

What rights do we have at possession (as buyers)?

Asked by Adl, Indianapolis, IN Tue Mar 13, 2012

We were represented in this sale by an "limited" agent, which is legal in my state. We closed about a month ago, and the contracts states we're to get possession 30 days after close at noon which is coming up here soon. We've tried to contact our agent, but couldn't get in touch. Eventually, we were forwarded to someone else at the office who is supposed to be covering for her. I was already uncomfortable with the 30 day possession date, but was told by the agent that was a non-negotiable item for the sellers. Now the sellers are refusing to get out at the agreed upon time and we can't seem to get the agent or her proxy to insist that they leave. What is our recourse? I feel terrible about this situation because I feel like this agent never truly represented us, and had allegiances to the buyers the whole time. This is my first home purchase, so there is a lot I didn't know.

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Attorney referral:

Jeff Slaughter
8310 Allison Pointe Blvd. #204
Indianapolis, IN 46250.
0 votes Thank Flag Link Thu Mar 15, 2012
In reference to who you should call for an attorney Scott Treadway, ESTLAWLLC.COM would be my absolute first choice. I'm hoping you won't need his service, but if you do, let's just say I'd rather be with him than against him:)
0 votes Thank Flag Link Thu Mar 15, 2012

Firstly, thanks to everyone for the advice - it truly is appreciated. We were not working with a realtor when we came upon this house, so as we talked to the buyer's realtor she explained the limited agency concept and said that she was representing both us and the buyer per that status. She explained that she would be fair to both parties, etc.. I unfortunately didn't think to question that.

Regarding payment for the days that the sellers have been in the house since closing - we have received nothing. The only thing denoted in the contract is that the sellers are required to pay us $150 per day they remain in the house AFTER the 30 days. I asked the realtor about this prior to closing, and she made it seem like it was common for sellers to live in a house without paying rent for an agreed upon time. Now, as I've learned more, it certainly seems that we could have negotiated that. This was NEVER presented as an option to us by the realtor.

We did call the realtor's office, and were forwarded to another realtor who is apparently handling the clients for this realtor. We came to find out that she has been pursuing another business venture and this is the excuse for why she can't return calls, e-mails, etc... So, now this other person is trying to help us, but I think it's too late for them to establish a very effective relationship with the sellers. The original realtor apparently didn't explain the contract to the sellers, so they think possession is at a later date and refuse to agree to vacate per the contract. My husband and I have tried to contact the seller to try to find a middle ground. It's a tense situation because the sellers did not want to move in the first place but were forced to due to financial circumstances.

So, right now, I'm still waiting to hear something from the proxy realtor or the sellers. We are supposed to get possession tomorrow... I'm just worried that if things are destroyed, what are the odds that we'll actually be able to collect any damages since I've now learned that NOTHING was held in escrow. All in all - TERRIBLE experience.

I would appreciate recommendations for an appropriate attorney. Thanks again!
0 votes Thank Flag Link Wed Mar 14, 2012
In Indiana, when you purchase the home it is yours and the previous owners become 'tenants'. I am not an attorney, but that is my understanding. Any posession agreement is basically seen as a lease. If you feel you are going to have a problem, you must file in small claims court immediately. There should be a penalty in the purchase agreement for a per-day rate if they stay past the time in the contract. Go after the money, but first get them out. Usually a court notice will motivate them to follow the contact. Good Luck, next time have a full service REALTOR on your side and you will enjoy the process! John Creamer - Century 21 Scheetz.
0 votes Thank Flag Link Wed Mar 14, 2012
Interesting situation. I agree with all the statements about seeking your legal counsel immediately to start working on a plan...it does sound as though they have done nothing wrong at this point. If in fact you gave them 30 days, they have that right to stay there 30 days. It does suck a lot though if your agent didn't give you 100%, and you are paying for them to stay in your house, rent free. Hopefully your agent had them pay you for that time they had possession after closing. I am not an attorney, but I would bet that you don't have anything that you can do yet, as they haven't done anything that would breach your contract...just from what I read here. It kind of doesn't surprise me that you can't reach people though. I know that every story has two sides, but if your side is the closest to the truth...I can see that if a shady agent, did take advantage of you. Why would they want to talk with you? And, just another thought...I betcha they weren't as hard to reach when you were in the process of buying their listing(that they had for 8 months with no other offers). Believe me when I say that I am sorry for your situation. I don't even know you, but I know that people that go through the experience you have don't want to trust another agent again...I'd like to say on behalf of "All us good guys" we do keep your best interest at heart. All these agents that have written below me are really good people. I only know one, personally(the one with the puppy dog on the sign), but I know that they are all really good agents because they are helping you. Taking their time to write you-when there is nothing in it for them. We don't get payed to be on Trulia, and you have already purchased a house. These agents are selfless people...and to you guys...good job.

Adl, I wish you the best of luck moving forward. I hope that you are worried, and at the end of the 30 days, I hope they are all out, and this was all for nothing. If not, you may want to get your lawyer envolved. One last thing that I would add though. It is easy to ignore a call, but you can drive to an office or a house, maybe just go talk with these people in person. Who knows????? Good luck!
0 votes Thank Flag Link Tue Mar 13, 2012
I just want to add that the fact that your agent was in limited agency status is not the problem here. This situation could have easily happened if you had your own buyer's agent. I would raise an eyebrow if the daily liquidated damages is tiny or zero, especially after it was discussed as an issue that you were concerned about. I like the idea of speaking with the agent's principal broker. If the daily damages is very low or zero I would definitely bring this up with the broker and make it clear that you are concerned about the limited agency status. But, do you have something in writing that indicates limited agency status? Or did the agent show you other properties prior to you putting an offer on this one? Buyers agency can arise simply by an agent showing you several properties that are not his/her listings. On the other hand if you met the agent at an open house, for example, and then made an offer, there may not be any agency duty to you. You would simply be a customer. If the daily liquidated damages are reasonably compensating to you then I think you were represented reasonably well, at least in that respect, and the problem is simply between you and the seller.
0 votes Thank Flag Link Tue Mar 13, 2012
Talk to your agent's managing broker right away. Have him or her contact the sellers asap and find out what the problem is. If you don't get a satisfactory explanation and a move in date, contact an attorney and turn it over to him or her. In some states it is illegal to represent both sides in a real estate transaction, and your situation seems to be a valid reason why. Good luck and I hope you have a successful outcome and can enjoy your new home real soon.
0 votes Thank Flag Link Tue Mar 13, 2012
Hi Adl,

I like Kline's and Joe's answers below.

But my advice: Start with your agent's Broker: Is your agent taking "care" of
you, as is her legal obligation - would the Broker please see to it that the agent
verifies the seller will vacate as agreed, and gives you a time you can begin moving your things in - on the date promised in the contract, or you will use legal means. That will serve to inform the seller you are serious about the date. Sometimes, a little nudge/reminder of consequences is all it takes.

Do this immediately. You are understandably nervous, and frustrated with your agent's lack of communication.

And - DO speak with an attorney - immediately. Maybe the sellers will move out after the Broker's call. And maybe, as Kline suggests below, the Demand Letter is all it will take to make the sellers see the light. But know your legal options and be ready to use them.

Hopefully, the sellers just hit a snag for a day or two.

Good Luck .... (PS: and next time, use your own buyer's agent)
0 votes Thank Flag Link Tue Mar 13, 2012
I encourage you to engage a real estate attorney immediately. I can provide some good references if you'd like.

I'd also encourage you to make every effort to keep the conversations with the prior owners amicable. See if you can discover why they're delayed and see how you might help them. Maybe their new home isn't ready, or perhaps the mover they hired flaked out on them. There are lots of reason why a moving day can get delayed. Creating ill will may result in them damaging the property or somehow creating other problems.

Regarding the agent, I'd escalate the calls and ask to speak to the managing broker. Who knows...there might be a legitimate reason why the agent is unavailable. Regardless, speaking with the managing broker may result in a favorable outcome.

Good luck!

Joe Shoemaker
Principal Broker, REALTOR®
MacDuff Realty Group, LLC
317 413.8501
0 votes Thank Flag Link Tue Mar 13, 2012
There is a provision in the standard MIBOR purchase contract that provides for _____ dollars per day as liquidated damages when you aren't given possession on the agreed upon date. You/your agent fills in the blank to define the amount of daily damages. Check your purchase contract for this provision. I'm not an attorney but I think your next step is to bring an eviction lawsuit in small claims court and then follow it up with a proceeding supplemental for a damages judgment. Small claims court is intended to be simple enough that you don't need an attorney. If this this seems daunting I suggest hiring an attorney. The first step for an attorney is to send a demand letter. That alone may do the trick and your legal fees would be minimal. If it doesn't then the attorney would likely bring a lawsuit for possession (eviction) in small claims court and handle the damages claim as well. I wouldn't entertain lame promises from the seller of moving out at some future date. The seller has already shown themselves to be unreliable.
0 votes Thank Flag Link Tue Mar 13, 2012
Have your attorney send the sellers a letter demanding that they vacate (give them some days, not too many, after receiving it). Then have him take action if they are not out. Let them know that you will be charging them rent for every day past the 30 day period, and make the rent on the high side of reasonable.
0 votes Thank Flag Link Tue Mar 13, 2012
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