Real Estate Fable: Possession at Funding

By
Real Estate Broker/Owner with Buy and Sell Oklahoma LLC 172320

One, hot (yet cloudy) Oklahoma afternoon at approximately 12:00 pm, a closing was taking place between Seller Mr. Fox and Buyer Mr. Bear.

Getting under contract was somewhat intense, Seller Mr. Fox tugging on the purchase price one way and Buyer Mr. Bear pulling the other.  They made it through the inspections and repair phase without showing their claws AND everyone seemed to whistle while they worked through the remaining phases of the transaction.

Now, back to that Friday afternoon at the closing table.

Seller Mr. Fox and Buyer Mr. Bear signed the paperwork in their separate rooms.  It all came down to waiting for funding.  Thirty minutes rolled by, then an hour, at which time the Closer walked into Seller Mr. Fox's room and said, "We are still waiting on funding but Buyer Mr. Bear and his agent would like to know if they can have the keys so they can start moving before the rain comes in."

The whistling seemed to stopped instantaneously.  Seller Mr. Fox looked to his agent for a response.  Luckily, for Seller Mr. Fox, his agent had prepared for this exact situation.  During the offer stage, the Seller's agent insisted on including the phrase "Possession at Funding" instead of "Possession at Closing."  As soon as the agent reminded the Closer of that detail, you could see a sign of relief on the Closer's face.

When the information was relayed to Buyer Mr. Bear, although disappointed, he expressed understanding.  The contract had given guidance to the situation and therefore offered stability as the parties continued to wait.

Just before 5:00 p.m., funding did come through.  Buyer Mr. Bear left with keys in hand and Seller Mr. Fox left with his proceeds from the sale.

 

This tale could have ended with attempts to negotiate at closing, high emotions, and overall uncertainty had the phrase "Possession at Funding" been excluded from the contract.

 

Buy and Sell with Confidence

Posted by

 

Alesha A. Wilson, M.Ed. | Broker/Owner

Buy and Sell Oklahoma LLC
405.837.6511

 

 

Comments (62)

Alesha A. Wilson, M.Ed.
Buy and Sell Oklahoma LLC - Oklahoma City, OK
Buy and Sell Real Estate with Confidence

Thank you Raul Rodriguez    That's a good way to put it - Checking that crosses and dots are made!

 

Thank you Ron Barnes  Glad you liked it!

 

Helping our buyers and sellers feel confident with a solid contract.  I like it Lyn Sims.  Thank you for stopping by 

 

I'm thrilled you found it entertaining Nick & Trudy Vandekar, 610-203-4543.  Thank you for the congrats and encouragement!   

 

 

 

 

Mar 16, 2018 07:22 AM
Alesha A. Wilson, M.Ed.
Buy and Sell Oklahoma LLC - Oklahoma City, OK
Buy and Sell Real Estate with Confidence

I would like to see that phrase added to our contracts Lorrie Semler, REALTOR® in the Dallas area. Call/text 972-416-3417.  Thank you for sharing!

 

Thank you Christine Kankowski North SD and Temecula.  Sounds like several states handle closings similar to yours.  I am enjoying hearing the different "journeys" toward obtaining the keys   

 

Thank you Richie Alan Naggar   I like it, "no emotional clauses"  I definitely aim to keep it that way.

 

Thank you Corey Martin   Luckily it was a brief moment of tension.  Thank you for stopping by! 

Mar 16, 2018 07:35 AM
Alesha A. Wilson, M.Ed.
Buy and Sell Oklahoma LLC - Oklahoma City, OK
Buy and Sell Real Estate with Confidence

That's a good way to put it, "closing is "dry" til the funding comes in."  Thank you for sharing Linda Metallo DiBenardo 

 

I am sure that advice was given to me from a situation experienced by my mentor - and I repeatedly added the phrase without truly knowing how beneficial it was.  Thank you for sharing Marie Story and commenting that my story gave you something to think about 

Mar 16, 2018 07:46 AM
Alesha A. Wilson, M.Ed.
Buy and Sell Oklahoma LLC - Oklahoma City, OK
Buy and Sell Real Estate with Confidence

I agree George Souto, closing should be a happy time   Thank you for stopping by!

 

Thank you Kathi Heern, It definitely helped to have it in writing on that Friday afternoon 

 

All real estate attorney's may not agree, but I talked to one who mentioned that a majority of issues could be resolved by following the contract.  Thank you for sharing Lottie Kendall 

 

The comments from other states has me curious as to what closing and possession day (or days) look like - especially the states that have the closing recorded before possession.  Thank you for sharing Kimo Jarrett 

Mar 16, 2018 08:12 AM
Debb Janes EcoBroker and Bernie Stea JD
ViewHomes of Clark County - Nature As Neighbors - Camas, WA
REALTORS® in Clark County, WA

Hi Alesha. Great little story to tell and important tale about posession. Usually it's the anxious buyers pushing to get in asap. (Who can blame them?) In Washington, it happens when we get the final recording numbers from Title, that is  closing - and that's when the buyer gets the keys. 

Mar 16, 2018 08:46 AM
JL Boney, III
Coldwell Banker - Columbia, SC
Columbia, SC Real Estate

We have this covered in our contracts as well. No keys until the deal has funded.

Mar 16, 2018 12:34 PM
Alesha A. Wilson, M.Ed.
Buy and Sell Oklahoma LLC - Oklahoma City, OK
Buy and Sell Real Estate with Confidence

Thank you Debb Janes EcoBroker and Bernie Stea JD   I agree, Definitely can't blame the buyers for wanting to get into their brand new home!  Thank you for sharing how it's done in Washington (:

 

Mar 16, 2018 01:52 PM
Candice A. Donofrio
Next Wave RE Investments LLC Bullhead City AZ Commercial RE Broker - Fort Mohave, AZ
928-201-4BHC (4242) call/text

If you've ever seen funding reversed, you would never include that clause. I have seen funding reversed. Twice, in fact.
We don't have settlement table closings in Arizona. Closing happens after confirmation of recordation by the County Recorder. Period!
YMMV . . .

Mar 16, 2018 02:13 PM
Brian L. Sirota, Esq.
Bristar Realty (Realtor/Attorney) - Orange, CA
For Solutions: (714) 501-7660

Due respect, I'm with Candice A. Donofrio... I'm really surprised at all the folks who agree with this practice.   I can understand the buyer's agent wanting to facilitate early possession, but never the seller's agent.

It was cute story to read, though. 

Mar 16, 2018 04:36 PM
Fred Griffin Tallahassee Real Estate
Fred Griffin Real Estate - Tallahassee, FL
Licensed Florida Real Estate Broker

   Our closings usually have both buyer and seller present at the closing table.  The funding is part of the closing process.   

   The listing agent gives the keys and garage door openers to the Title Closer.  After all documents are signed, the title closer passes out checks (or receipts for wired funds) to the real estate agents, and net proceeds to the Seller.  The keys are passed to the Buyer, who now possesses the house.

   The Title closers (some are law firms, others are title insurers) have runners take the signed Deed to the Courthouse.  In legality, the Buyer does not "own" the house until that Deed is recorded.

 

    Tallahassee Board of Realtors local contract:

  

 

     The WORST thing that a Broker can do is let a Buyer take possession before closing, or let a Seller hold over after closing, unless an Attorney has drafted a separate lease, and contract addenda.

Mar 16, 2018 05:26 PM
Debe Maxwell, CRS
www.iCharlotteHomes.com | The Maxwell House Group | RE/MAX Executive | (704) 491-3310 - Charlotte, NC
The right Charlotte REALTOR!

Possession at recordation is typically what we recommend - the sad thing is that many will allow the possession at Closing and that is not when the fat lady sings!

Great post, Alesha!

Mar 16, 2018 07:49 PM
Alesha A. Wilson, M.Ed.
Buy and Sell Oklahoma LLC - Oklahoma City, OK
Buy and Sell Real Estate with Confidence

Thank you Candice A. Donofrio for the insight from Arizona.  I can see how the phrase would not be beneficial to the transaction structure such as that.  I spoke with my mother, who is a retired Director of the Real State Commission, about the varying comments, and she said each time she attends the Arello meetings it is so interesting to see how each state (and even country) operates the transaction.  Thank you for sharing YMMV story

 

Thank you Brian L. Sirota, Esq.   With our closing process, the phase helps avoid early possession.  Even as a buyer's agent, the phrase is included so they know the expectations beforehand - signing at closing does not mean they take possession - funding has to take place.  Thank you for sharing some insight from California 

Mar 17, 2018 07:23 AM
Alesha A. Wilson, M.Ed.
Buy and Sell Oklahoma LLC - Oklahoma City, OK
Buy and Sell Real Estate with Confidence

Good morning Fred Griffin,  Thank you for the detailed description of how Florida gets it done   It does look similar to Oklahoma, although your "runners" may be a little faster than ours in regards to recording.  The comments have definitely peeked my interest in how the process is done in other states.  Thank you again for sharing! 

Mar 17, 2018 07:37 AM
Alesha A. Wilson, M.Ed.
Buy and Sell Oklahoma LLC - Oklahoma City, OK
Buy and Sell Real Estate with Confidence

Hi Debe Maxwell, CRS,  Thank you for sharing the process from NC.  I love coming to the Rain to gain insight from other states.  I choose this over local platforms because it provides a challenge - a challenge to learn and grow from a a more "global" perspective of this industry.  Thank you again for stopping by

Mar 17, 2018 07:51 AM
Jeff Dowler, CRS
eXp Realty of California, Inc. - Carlsbad, CA
The Southern California Relocation Dude

As Lottie Kendall  points out things are handled differently with funding and closing here in CA. But the contract is what is to be followed. Commonly buyers get possession at 5 pm on the day of closing which can't occur until funding has happened.

Jeff

Mar 17, 2018 08:29 AM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate

As Lottie Kendall Brian L. Sirota, Esq. Candice A. Donofrio point out, we fund, then record. Possession only takes place after we have confirmation the deed is recorded.  NO ONE gets possession until the sellers are no longer on record as title holders.  Period. End of Story.  That said, there have been some very silly agents (I'm being kind with the term silly) who did give buyers the keys prior to funding, recording and closing.  

Mar 18, 2018 09:08 AM
Candice A. Donofrio
1M+ Riverfront home, buyers informally prepossessed for 1 weekend prior to close. House fire erupted. Extensive damage. Neither insurance company would pay; sellers ins. wasn't covering rental. Buyers didn't yet own house. No COE, no commissions, Buyer/Seller sued each other and everybody turned Brokers upside down to see whose pockets were deeper.
A cautionary tale. And no it wasn't my deal!
Mar 18, 2018 09:36 AM
Anne Corbin
Long and Foster - Lake Anna - Spotsylvania, VA
Serving Lake Anna & Central Virginia

I believe our Virginia contract states "possession at settlement" and then a previous paragraph says "settlement shall be on or before (proposed date)".

So, we would give possession on the date of settlement, not when it gets recorded. Around here, it takes up to two days to get things recorded (why, I'll never know). When I worked for attorneys, we'd get it recorded immediately. You never knew what was going to get recorded ahead of you (like a judgment) that could derail disbursement.

Mar 18, 2018 12:23 PM
Alesha A. Wilson, M.Ed.

Anne Corbin, sounds like our closing process is very similar.


Have to say, your first and last name are among my favorite names in the world - my mother's name is Anne (yes with an "e") and my son's name is Corbin  Thank you for stopping by!  

Mar 19, 2018 09:04 AM
Gabe Sanders
Real Estate of Florida specializing in Martin County Residential Homes, Condos and Land Sales - Stuart, FL
Stuart Florida Real Estate

This is a very wise addition to any sales contract, Alesha.  It is now part of the standard Florida FAR/BAR contracts as of a few years ago.

Mar 22, 2018 04:27 AM
Joan Cox
House to Home, Inc. - Denver Real Estate - 720-231-6373 - Denver, CO
Denver Real Estate - Selling One Home at a Time

Alesha, cute post, but we do see this all the time.  Funding can take some time, and possession should be given at the time of funding! 

Mar 22, 2018 07:14 AM
Dorte Engel
RE/MAX Leading Edge - Bowie, MD
ABC - Annapolis, Bowie, Crofton & rest of Maryland

Dear Alesha,

That is, what hotel suites with a kitchenette were invented for. I have had some that for some reason did not settle completely until 2 weeks after the 11th hour. Rare, but stuff happens.

Mar 28, 2018 08:48 PM