I would greatly appreciate some advice on the following situation.We are about to buy a short sale home in

Asked by Bindu Menon, Cupertino, CA Sun Jul 20, 2008

Campbell. We have some concerns with regards to the present owner of the house moving out. Is there any way we can put in the contract that the present owner will move out the moment we close the deal? We are very concerned as it will be too much of a burden to pay the rent and mortgage as well.
Any advice will be much appreciated.
Thank you

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Diane Wheatl…, Agent, Upland, CA
Sun Jul 20, 2008
Tenants can become a problem when it comes to their "time to leave" under any circumstances, even a short sale. Yes, of course you can write all that verbiage in the contract. Think about who is named in that contract. I mean that the contract serves as an agreement between two parties. Are you in contract with the seller or the lender? How are you going to enforce this contract if that situation presents itself?

What is the motivation of the current seller to agree to a short sale opposed to allowing it to go to foreclosure? Does this seller have an agent representing them? If so, then they obviously were motivated enough to contact a Realtor and list the home for sale which could indicate that they have intentions of moving out. But intentions and actions are two different things.

As soon as legally possible, you must start eviction proceedings starting with a notice to vacate pending the transfer of title or closing date. You could put a per diem charge in the letter stating that they could owe you "x" amount of dollars for each day they remain in the premises after close. A court may not order them to pay that penalty but it could straighten up the owner enough to get them moving.

Worse case is that you will evict them under California law and all that entails. Yuck. It happens though. And maybe you will be fortunate enough to take title and possession all at the same time! Good luck to you. I'm not an attorney in any regard and not advising you in a legal capacity. This issue should be reviewed by an attorney for further action.
1 vote
Terri Vellios, Agent, Campbell, CA
Fri Sep 19, 2008
You can put what ever you want in a contract, as a contract is a mutual agreement between both parties. I have done just that with rental properties. Escrow shall close x days after vacancy or x days before a close of escrow. Do your walk through. If there is a current tenant a Tenant Estople Statement is recommended. Do talk with your agent to explain this to you.
Web Reference:  http://www.terrivellios.com
0 votes
Tom Stynes, Agent, Campbell, CA
Tue Aug 26, 2008
Hi Bindu,

As mentioned in prior posts, you or your agent should state in your contract the present occupants need to vacate on or before the close of escrow. You also have the right to perform a walkthrough prior to close of escrow. I would recommend the walkthrough be performed a day or two before your scheduled to close escrow. If the owner is not out, tell the title company not to record the transfer until the occupant vacates.

Good Luck,
0 votes
William Moody, Agent, Cupertino, CA
Thu Jul 31, 2008
Hi Bindu,

Blaison is right and in this area in the South Bay we have 2 different contracts both of which will protect you the second contract is a different section but we can help with that. I have my office in Cupertino which Campbell is very close and certainly in my area of expertise.

Let me know if I can help you and you can reach me at 408-802-1792
Bill Moody
Referral Realty
0 votes
blaison samu…, Agent, Santa Clara, CA
Tue Jul 29, 2008
Hi Bindu,

When you write an offer, there's a clause in purchase agreement (page 1, Section 3B) where you mention the occupancy status when the occupancy to be delivered to buyer like whether on close of escrow or no later than x number of days after close of escrow, so you need to check mark on "On date of close of Escrow". In that way, you will be fine and your agent can help on that purchase agreement.

Let me know if you need any further assistance, I would be glad to help you. You can reach me directly at 510-366-9405. Speaks Hindi & Malayalam also.

Blaison Samuel
Certified Short Sale Expert
Prudential California Realty
0 votes
Vicky Chrisn…, , 20176
Sun Jul 20, 2008
Talk to your agent, but I think you could put in a clause in the contract that says the home must be vacated 24 hours prior to scheduled closing. That way, you can verify no one lives there prior to closing. If the occupant hasn't moved, then you can delay settlement for up to X days until they do or cancel the contract - be careful with the language here. I think that is likely your best way to do it. Again - refer to your agent/attorney, I am just brainstorming with you.
0 votes
Dallas Texas, Agent, Dallas, TN
Sun Jul 20, 2008
That is specified in the sales purchase contract executed agreed upon by both parties. Whether its a short sale, or a seller with no problems you are always at risk of the seller not moving. You will then have court action against the seller. It is the normal concern of anyone purchasing a home.
http://www.lynn911.com http://www.homes-for-sale-dallas.com
0 votes
Pacita Dimac…, Agent, Oakland, CA
Sun Jul 20, 2008
If your offer has been accepted by the lender, and if you do have a closing date, then by law, as soon as escrow closes, the property is yours.

You should also exercise your right for a buyer walk through at least 5 days before close of escrow, and maybe even the day before close of escrow to make sure that the seller is vacating the premises.

Unless you and the seller have an agreement where the seller can stay after close of escrow, and you charge him a pre-set rent for each day that he occupies the place (for example, the daily cost of your own PITI, principal, interest, taxes and insurance), then the seller has no rights to stay. If the seller doesn't leave, you have every right to evict the seller and change the locks (which is something you should do anyway upon buying a previously owned house).

Share your concerns with your realtor who will guide you through the process.

Good luck.
0 votes
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