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Home Buyer Possession / Occupancy - All About Buyer Possession

When Can a Home Buyer Move In?

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Home Buyer Possession / Occupancy - All About Buyer Possession

Buyer possession is not always granted at closing.

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Buyer Possession. Seller vacating. Without fail, it's the single biggest headache in most real estate transactions, the number one problem that often rears its head midway through when needs or circumstances change. Sometimes it was never clear in the first place. Often each of the parties, buyers and sellers, have a contradictory expectation of possession.

What Constitutes Closing?

Bear in mind that closing doesn't always mean recordation of the deed because in some parts of the country, counties are weeks behind in recording deeds. In those situations, closing happens when the money changes hands, the deed is drawn and all conditions of the contract have been met. Where I work in CA, buyers don't get the keys until the title company has confirmed the deed has been recorded and conveyed that confirmation.

Customary Possession Dates

Local custom will dictate how the buyer asks for possession, but possession is typically an issue agreed upon at purchase contract acceptance. It's not unusual for a buyer to receive keys on the day the transaction closes. In some parts of the country, buyers give the sellers a day or two after closing to move. Sometimes sellers rent back from buyers. Whatever you agree to, make sure it's in writing.

Market Conditions Also Dictate Possession

  • In seller's markets, buyers will often give sellers several days to move at no consideration to the buyer. This is to gain an edge in the event the seller receives multiple offers.

  • In buyer's markets, buyers will generally insist upon occupancy at closing and have been known to refuse to close if the property isn't going to be vacant at closing.

  • In neutral markets, possession is typically upon closing.

Early Possession

As a general rule, giving buyers early possession is frowned upon because too many things can go wrong at the last minute. Eviction is not always easy or inexpensive. For that reason, pros advise that sellers and buyers execute rental agreements.

Seller Rent-Backs

Buyers want sellers to pay a sum equal to their mortgage payment, plus insurance and taxes. That amount is often a lot more than the seller's original mortgage payment. Whatever amount is agreed upon, put it in writing and execute a rental agreement to protect all parties.

Delays Due to Loan Funding Conditions

Even the best laid plans run afoul at times. Your contract can spell out precisely when occupancy is permitted, yet the transaction might not close on time. Common reasons involve the loan. By the time the loan docs are signed and the lender reviews them, the underwriter might call for a loan condition to be satisfied prior to funding. The satisfaction of that condition can easily delay the loan.

A recent seller from Carmichael, CA, found that she could not find any movers to work on a holiday, the day she was supposed to vacate her home of 40 years. The buyers refused to give the seller an extra day to move out, claiming the seller should have made arrangements far in advance of her move-out day. Reluctantly, and at additional expense, the seller changed her moving day to meet the buyers' demands.

At the last minute, the lender called for a loan condition and refused to fund the loan until the condition was met. Meeting the condition took an extra two days, but the buyers wanted the keys to the home on the day it was originally scheduled to close. They didn't want to move in. They wanted to shampoo the carpet. If you were the seller who had moved out and left the home vacant, under these conditions, would you have given the keys to these buyers?

The seller, when informed that keys should not be handed to a buyer until a transaction closes, decided to withhold the keys. She was within her rights.

Tip: Instead of specifying possession on a certain date, it's smarter to write contracts that give possession either on "closing" or X days before or X days after; not a specific date.

At the time of writing, Elizabeth Weintraub, DRE # 00697006, is a Broker-Associate at Lyon Real Estate in Sacramento, California.

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