We're purchasing a home, closing on 7/23. The seller's have not even started packing, and said they are

Asked by Casey Frederick, Houston, TX Mon Jul 21, 2008

having a moving company come to start packing on 7/28. We have 2 small children, and have to be out of our house for our new buyers. Can he legally stay in the house after we close? How can we get him out? We never agreed to let him stay.

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18
Carol Pease,…, Agent, Austin, TX
Tue Jul 22, 2008
Casey:

Please discuss this with your agent. I personally would not close with this person still in possession of your new home. He might get the message if he doesn't have your money in hand. You have been put in a very very difficult position. Please let us know what your attorney advised? It sounds like your seller's Happy Meal didn't come with a toy!
2 votes
Mike Russell, Agent, Overland Park, KS
Wed Jul 23, 2008
I would refuse to close unless money is placed into escrow for possible damages. Protect yourself the best you can.
1 vote
Jeanne Feeni…, Agent, Basking Ridge, NJ
Wed Jul 23, 2008
Casey, have your attorney try to recoup those motel bills and any other costs you incur. Also, be sure your attorney is up to speed on what you found at the walk-through - - money talks and withholding some in escrow at the time of close may help get this guy to keep his promises and do the right thing. And if not, at least you have some funds to cover the expense of things like fan installation , cleaning home etc.

Push hard on your agent and his/her broker to stay actively involved to reach resolution.

I am so sorry you have incurred this hardship - good luck to you.

Best,
Jeannie Feenick
Weichert Realtors
Search and connect at http://www.feenick.com
Web Reference:  http://www.feenick.com
1 vote
Bruce Lynn, Agent, Coppell, TX
Tue Jul 22, 2008
Casey,

Tough situation.
1. I think you need to contact your broker immediately, not just the agent.
2. Make sure you do a walkthru before closing.
3. I'd personally hold off closing until the seller is completely out and you are satisfied with vacancy.
4. Not closing is your biggest bullet.....with someone like that I would NOT lease to them.
Why would he follow a lease any more than a sales contract?
There are strategies, but I think it depends on your market, who is representing each party, what kind of deal you got on the house, what moving situation you are in, your tolerance for a legal battle, etc. All strategies best discussed with both your agent and their broker and perhaps even with a board certified real estate attorney. Instead of charging him rent, why don't you get him to pay for your hotel bill, food, and furniture storage fees. If you're sure he won't be out by closing prepare an amendment to that effect and have your agent send it to him. Of coure he probably won't sign it, but perhaps he'll get the message you are serious. Good luck and please let us know what happens.
Web Reference:  http://www.teamlynn.com
1 vote
Casey Freder…, Home Buyer, Houston, TX
Tue Jul 22, 2008
The realtor just says that she is trying to get him out, but he said he won't pack. I checked our contract this morning, and it is checked that they have to turn the house over at closing/funding. We never agreed to a lease agreement. We did extend our contract from July 10th, and he has known about closing on the 23rd since that date. I emailed our realtor this morning and told her what the contract says about receiving possession at closing. I told her we would not be responsible or liable for his property or the house while he was still there. If he refuses to leave, we will lease the house back to him for $3,000.00/day until he leaves that will be payable at closing. I know it sounds like a lot, but we are trying to just get them out of the house, and thought that might rush them. Both my husband and myself have put in for vacation days to move in & clean, the utilities come on in our name tomorrow, and we'll have a motel bill as well as the moving truck until he leaves and just the hassle of having our 6 yr old & 16 mth old baby stuck in a motel b/c he refuses to pack his things!!

I really appreciate all the answers and feedback I have received here. I did contact a real estate lawyer, and we are meeting with him at 1:30 today to see what our options are. Someone else told me that we just need to get him to the closing table, I'm afraid now what if he doesn't show up??

Oh, and the realtor is supposed to talk to her broker, maybe I should talk to him direct?
1 vote
Jeanne Feeni…, Agent, Basking Ridge, NJ
Tue Jul 22, 2008
Hi Casey - the rule of thumb is that possession of the property takes place upon transfer of title which takes place at close- unless agreed to otherwise. Unless there is an agreed upon Use and Occupancy Agreement in place I don't think the seller has a right to stay beyond close. I agree with others that have responded, if it has gotten to this point so close to close, you need to involve the Broker/manager of the office.

Good luck to you,
Jeannie Feenick
Weichert Realtors
Search and connect at http://www.feenick.com
Web Reference:  http://www.feenick.com
1 vote
Juan Carlos, , 77095
Tue Jul 22, 2008
HI Casey,

I am not sure if your agent is representing the seller as well, but in any case, it seems like your agent is not doing a good job for you.

I suggest, that if the seeler can't move out before the 23rd - you lease the property to him/her for 5 days or whatever it take - make sure the seller signs the lease befor the 23rd. I would ask for a high dollar per day ammount and ask for this money to be paid upfront at closing - you can even take it off the sales price or use for closing costs or something. You might have to stay in a hotel for 5 days. You see, in Texas you need a court order before you can evict someone; needless to say, it can take a while before you can get court order. The lease will probably be your best bet. So sorry about this.

Juan Carlos
1 vote
Janine Love, Agent, The Woodlands, TX
Mon Jul 21, 2008
The Realtor should be laying down the law. Because once you close on the home, you own the home. You could always offer him a leaseback for the 5 days at a high daily amount....sometimes knowing they will have to pay $$$ get's them moving a lot faster.
1 vote
Janine Love, Agent, The Woodlands, TX
Mon Jul 21, 2008
Yes, this questions SHOULD be answered in your contract. Our Texas Real Estate Commission Contracts have a place to mark WHEN buyers take possession and normally we mark that possession takes place when Funded.

If you have a Realtor, that agent should be working this out for you with the Seller's Agent.

Good luck.
1 vote
Kathy Fisher, Agent, Decatur, TX
Wed Jul 23, 2008
Casey, by this time you may well be on your way to the Title Company for closing (HOPEFULLY). Normally, the buyer signs first and then the seller. If that is senario for your closing, you CAN refuse to sign unless proof is presented that they have moved out. IF they can not produce this evidence OR if you know for a fact that they have not (driving by the house OR requesting a walk thru prior to closing) THEN sign ONLY if there is an amount held out of their proceeds in escrow. As I previously said, you can figure what your payments will be a month, divide that by 30 and then pro rate it for 5 to 6 days and request that amount PLUS a reasonable amount for utilities(pro rated) to be held out. Once they have moved out, then do a walk thru with a third party, non-biased person and if there are damages, continue to seek legal resolution through your attorney.
By the way, you stated that you had an appointment with an attorney, what came of that?
I'll keep my fingers crossed for you and say a BIG prayer that things work out in YOUR favor.
0 votes
Casey Freder…, Home Buyer, Houston, TX
Wed Jul 23, 2008
We went to the walk through yesterday afternoon, and there was not even 1 moving box in the whole house!! All his things are set out like they're planning on staying for a while. The ceiling fan that was installed in the living room is now in the master closet, he said it matched the kitchen fixture at his new house. I told the realtor we want it installed, and she told him he could not remove it like that. We went and spoke to the broker right after the walk through, and he found someone that can pack the guy today (will take 1/2 day), then have a furniture company bring a moving truck to move his stuff. The guy refused that and said he wanted his own company to take care of it next week. The offered to pay the seller a little money to get out, he refused. Right now we're stuck in the middle of a rock and a hard place, like I said, we have 2 small children and no where to go. The attorney said we can freeze all their profits from the sell of the house until they settle with us. No one will get paid - realtor, broker, or title company, but that can draw out to several months if the guy decides to fight it, and then we'll have no where for our family to stay. We did type up a lease agreement, and he refuses to sign it, we did say we want $3000.00/day, which we don't want any money at all, we were just hoping that would scare him into getting out quicker. He sent back a letter with the realtor saying he wouldn't sign that. I think he should have to pick up our motel bills and rental for the truck at the very least. Our interest starts on the property when we close, and the utilities are starting in our name today.

The reason we are kind of pressured to close is that our lock on our loan expires tomorrow (7/24). If we don't close by then, the interest rates have gone up, and our new rate will be at least .5% higher.
0 votes
Jeanne Feeni…, Agent, Basking Ridge, NJ
Wed Jul 23, 2008
Hi Casey, Jeannie Feenick back again, I ready your update and it sounds to me that you are doing all right things. I hope you meeting with the attorney went well and your suggested lease terms have lit a fire under the seller.

You are right to feel the way you do and correct that the seller should not be allowed to drag his feet. If you find yourself needing to delay close a day or two to get this guy out before close, it may be advisable. It is a little unsettling to think of leasing to someone that has demonstrated unreliable behavior already.

I had a similar situation and we did do a lease arrangement. The issue for us was that our walk through prior to close - which is critical in all cases - was impeded by the fact that the home was not vacant.
You are in a much better position at time of walk through to get action if there are issues to be addressed if it is preclose because you can put money in escrow if necessary to be released when issues are addressed.

I am sorry that the happiness of buying your new home has been negatively impacted by this stressful situation - good luck to you in resolving it.

Best,
Jeannie Feenick
Weichert Realtors
Search and connect at http://www.feenick.com
Web Reference:  http://www.feenick.com
0 votes
Jesus (jesse)…, , Nashville, TN
Tue Jul 22, 2008
Hi Casey;

First of all, let me just say, as hard as this is for your family, it is just as strange. What kind of seller doesn’t want to leave? What kind of seller is happy to leave? With those questions I got to wonder, does he really want to leave? Is he being forced to sell to prevent financial hardship? My point with all these questions is, it sounds to me something else is going on that we don’t know about. At this point, I am concerned that you aren’t getting the whole story.

With all that being said, what can you do? Truth is, till he has actually breached his agreement, I don’t know you can really do anything. Of course, you might want to consult an Attorney however, I am all most positive that until the seller doesn’t show up at closing or hasn’t vacated upon funding and disbursement, what has he done wrong? So, this put you and your family in a horrible situation because all the information you are receiving is this guy hasn’t done anything to prepare to leave even though you are now less than 24 hours from moving in.

I really hate to say this because it isn’t something I want to ever have to tell anyone but, you might need to be prepared to live in some sort of transitional housing. The truth of the matter is, even though you have an agreement, it doesn’t mean this guy is going to honor it. Consult an Attorney however, if I was you, after I closed the deal, if the Realtor wasn’t able to provide me keys and say, “it’s vacant” then I would contact my local Sheriff’s office and find out when I can schedule an office to come down to your property and force an eviction. In fact, if you haven’t found out what the procedures are for your counties forced evictions you might want to do that now.

As a REO / Foreclosure agent, some times I have to do these on behalf of my client who is the new owner. I go by to check on the property after the bank has taken repossession just to find out, the property is still occupied and the previous owner isn’t planning on leaving. Here in my county, the Sheriff can typically get an officer out to the property in 48 hours. If no one is home, we do a lock out, where I call a lock smith to come over and secure the home with new locks and the whole time, the Sheriff is there with us.

If this is something you have to end up doing, please take the necessary steps to ensure your families protection and be sure you are following all legal requirements so, it may be in your best interest to consult an Attorney.
0 votes
Karen Westbr…, , 30534
Tue Jul 22, 2008
No not legally, if your contract states that you take possession at closing. Talk with your realtor about contacting a real estate attorney to see what your options are.
0 votes
Kathy Fisher, Agent, Decatur, TX
Tue Jul 22, 2008
Casey, Sorry you are having this kind of problem. Even though the Realtor is handling both sides of the deal, he/she SHOULD be treating both sides fairly & equally. As several here have said, refer back to your contract. What was the original close date AND what is check on the "Possession" paragraph, #10 on page four of the Texas promulgated Contract. IF the box is checked that state, "possession to take place at closing/funding" THAT pretty much says when you have possession and the seller is required to turn it over. If you extended the contract, for whatever reason, there should have been an addendum to the contract stating that the close date had been extended with both parties signatures on that addendum to make it, technically, enforceable. IF the box in Para.10 that states, "...according to a lease back addendum...", THEN there should have been a seller's lease back addendum, WITH both parties signature on it to make it enforceable. IF THAT WAS NOT part of your contract, and you can NOT come to some type of amicable agreement (the seller paying you a daily rate until he is out-usually at least your interest payment per day) then he will be consider in violation/default of the contract and you will need to seek legal advice.
Also, as several have stated, WHAT IS YOUR REALTOR saying about all this? THAT broker should also be involved at this point.
I hope all turns out for the best.
0 votes
Sarah Solomon, Agent, Greenwood Village, CO
Tue Jul 22, 2008
Casey,

You need to call your REALTORS managing broker and have a conversation with him/her regarding the contract. Also, you might want to call an attorney and have them review the contract and make any suggestions or changes if needed-

Make very detailed notes-

Wishing you the best!
0 votes
Casey Freder…, Home Buyer, Houston, TX
Mon Jul 21, 2008
Sylvia, thanks for the answer. The realtor is actually representing us both. She said she's trying to get the guy out of the house, but he said there's nothing he can do. He has not been helpful at all during this whole process and has been very hard to get along with. We were supposed to have closed on 7/10, but couldn't make that date, so we extended our contract, and the title company set up the date of the 23rd for closing. Our lock on our loan expires on the 23rd, so we have to close then. Not only will me, my husband, and our 2 small children not have anywhere to go, I'm not comfortable with him staying in our new house, our insurance will be liable if anything happens to him or his property. He refuses to pack his own things!!
0 votes
Sylvia Barry,…, Agent, Marin, CA
Mon Jul 21, 2008
This usually do not happen in a normal sell (meaning none foreclosure). The sellers are very happy to have sold the house and are ready to move.

How did you agree on 07/23? Was that date on the contract or is that a new day due to convenience? If it's agreed on the contract, then you will be closing on 7/23rd, meaning not only will you not have a place to stay, you will be paying mortgage on the house and you can't move in.

What does your Realtor say? A bit detail of what happened along the line might help.

Sylvia
0 votes
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