Q: I purchased a home on November 21, 2003. The seller received her money three days later. At that time, my agent asked the seller’s agent for the keys and was told to look at his fax machine and call the seller’s agent back after he has read what was sent.
The fax said that the seller would not be able to move into the home she bought until the 29th and would therefore rent back the home we purchased.
I had already made arrangements and plans of moving into the home on November 26th, and had taken off work, called the utility companies and hired the movers.
I was completely inconvenienced because the seller’s agent did not give me prior notice of his client’s intentions. Because of this I had to pay six additional days of rent on my apartment, call the utilities to reschedule them, change the moving company and deal with a lot of hassle.
The seller said she will pay me the interest on my loan for the five days she stayed but will not pay for the inconvenience she put me through. In addition, she left the house in filthy condition and I spent 2 days scrubbing it clean. I had to get a professional carpet cleaner to clean the carpet.
I am angry and feel betrayed. Do you think it would be worth my time to take the seller to small claims court? Or should I just take the money she pays me and chalk it up to experience?
A: Your seller did not act in good faith, and unfortunately, her agent assisted her in this behavior. At the very least, you should have been told ahead of time that the seller did not plan to move out on the closing day so you could have made arrangements and written the proper “lease back” terms into your purchase agreement.
What if your seller decided not to move at all? You were completely vulnerable financially, and your own agent wasn’t watching your back to make sure this didn’t happen. Since you didn’t mention your real estate attorney, I can only assume you live in a state that doesn’t use them for residential closings.
But now you see why I recommend them, always. Your deal is a prime example of what happens when there are no attorneys involved, and your rights aren’t being protected.
The first thing you could have done to protect yourself was to do an inspection of the property before the closing. The purpose of the inspection, also known as the preclosing walk-through, would be to verify that the home is in the condition you were expecting to receive it and that the sellers had moved out.
And if they hadn’t moved out, you would have verified their movers were there and they were mostly out. If you went to do the preclosing walk-through and found that they hadn’t even started to pack, or move, you could have delayed the closing.
You should have never closed on the property without the seller already having moved out or without a written arrangement that included you holding cash back from the deal to ensure that the seller would really leave. The cash should have also covered your expenses for the delayed closing and any cleaning that might have been necessary.
In some states, if the seller doesn’t move out at the closing, the seller is forced to pay a significant daily penalty until he or she moves out of the property.
To determine if you do have an action against the seller, you will need to review the contract again and then consult with a real estate attorney.
As far as how your buyer broker handled the situation, he or she certainly didn’t represent you as an attorney would have, but the broker may not have done anything wrong. A broker cannot, by law, give you legal advice at the closing. In states where attorneys are not regularly used, brokers may assist you, but essentially, you have to be your own lawyer.
Jan. 19, 2009.