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Seller in Possession After Closing
Dear Phyllis,
Our offer on a home with more than ten other bidders came out on top. The seller demanded that they remain in the home for thirty days after closing. Although we weren’t excited about them living in our home, we agreed. I am sure our escrow process was not so different from what many others experience…. We were very aggressive in our offered price and then tried to gain back some ground after the inspection period. But we had no luck because there were two back up offers.
At the time of our final walk through the seller wasn’t even there. We told the listing agent we wanted a key as soon as escrow closed and he said he would check with the seller. Later, we were told we wouldn’t be getting a key until the seller vacated. It wasn’t as if we were going to use the key, but as an owner we feel entitled to one. What is the protocol when the seller remains in possession after closing? Should we be provided a key now that we are the legal owners?
Disgruntled
Dear Disgruntled,
Congratulations on your new home! Had you not agreed to allow the seller to remain in the home after close of escrow, your offer may not have been accepted. In a “bidding war” terms can be very important.
I am a Realtor and not an attorney, and as such unable to offer legal advice. When the seller remains in the home after close of escrow, the “Seller License to Remain in Possession Addendum” should be signed by both parties. In regard to “Entry” this form reads: Seller shall make Property available to Buyer for the purpose of entering to make necessary or agreed repairs, or to supply necessary or agreed services, or to show Property to prospective or actual purchasers, tenants, mortgagees, lenders, appraisers or contractors. Buyer and Seller agree that 24 hour’s notice (oral or written) shall be reasonable and sufficient notice. In an emergency, Buyer may enter Property at any time without prior notice.
You can understand from the seller’s perspective that they are more than just a tenant. They feel a very strong bond to their former home. In my experience with sellers remaining in possession, I have never given the buyer (now the owner) a key until the seller has vacated the home. If you encounter this circumstance in the future, I suggest noting your obtaining key upon closing on the Seller License to Remain in Possession Addendum.
You will be in your new home before you know it and am sure you will enjoy it.
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I certainly wouldn’t want the new buyer to have a key while I was still in the home. I agree with the sellers in this example. I can see where this could be touchy tho
It does not matter that “from the seller’s perspective that they are more than just a tenant.” In fact, the seller is neither a tenant or lessee, merely a licensee. As such, they have no legal right to withhold the keys upon close of escrow.