Can the Buyer Move in Early? Occupancy Prior to Closing

By
Real Estate Broker/Owner with Fred Griffin Real Estate Florida Broker BK436788

     Can the Buyer move in early?  The Closing is only a week away.  The house is vacant.  Inspections have been completed, the loan is approved, everything else is in order.  The buyers moved out of their previous home last week; they are staying in a hotel.  All of their belongings are in a moving truck.  The Buyer wants to move into the house early.

     What can be the harm?   

 

 

     When this question is posed to a Seller, a flashing red light and an alarm should go off.  "Early Possession" might result in serious legal and financial problems for both the Buyer and the Seller (and the real estate Brokers involved in the sale).

     If the parties agree to let the Buyer take Early Possession (also known as Occupancy Prior to Closing), you should see a real estate attorney for legal advice.  More on that in a moment...

 

 

   Here are some potential "Worst Case Scenarios" that could occur if the Buyer moves in early:

  

     1.  Buyer Damages the House

          The wife drops a heavy cast iron pan into the white porcelain kitchen sink, creating a large chip.  At the same time, the husband is backing the car up the driveway.  He accidentally crashes into the exterior of the house, causing serious damage.

          Who pays for these repairs?  Will the Seller's insurance cover it?  If it does, who pays the deductible?  What if the Buyer says, "We don't want to close until these things are repaired", and no contractor or repairmen is available before the scheduled closing date?

     2.  Buyer's Remorse

          It seemed like the perfect house when the Buyer made the offer.  But now that they have moved in, the Buyers realize that they don't like the floor plan.  Or, they were not aware that you could hear the rumbling sound from the highway that is just over the hill.  They call their real estate agent and say, "Uh... we have changed our mind.  We don't really like this house after all.  Tell the Seller that we want to back out of the contract."

     3.  Buyer Gets Injured 

          Little Timmy is excited to climb the oak tree in his new backyard.  About halfway up the tree, Timmy loses his grip and falls to the ground, resulting in a broken leg.  There will be costs for the ambulance, the emergency room, the orthopedic surgeon, the pediatrician, the radiologist, etc.

        Who is responsible for those costs?  Will the Seller's homeowner's insurance cover it?  The Buyer doesn't have insurance on Little Timmy.  Nor does the Buyer have homeowner's insurance in their name, since they have not taken title to the house (the deed is not yet in their name).  Who will be liable?

 

 

     4.   Buyer Finds Something Wrong with the House

          "We had the Home Inspector and read his report, but he didn't say anything about this kitchen appliance not working right.  The Seller needs to fix that, or else get us a new one."  The real estate agent reminds them that they did a Final Walk Through inspection.  The Buyer responds, "Well sure, but our contract says that the Seller warrants the appliances.  Since it is still their house, they need to fix it".

     5.   Liability for Personal Property

           An unexpected hurricane is forming in the Gulf of Mexico (e.g., Hurricane Michael, October 2018).  Two days later, it blows through town.  A tree falls on the garage, cracking the roof.  Eight inches of rain pour down on the Buyer's furniture and unpacked boxes that are in that garage, ruining most of it.  Who is financially liable, the Seller or the Buyer?

     6.   Buyer "Remodels" the House

          The Buyers plan to renovate the kitchen.  Why not get an early start?  "Let's go ahead and remove these counter tops, and take down these cabinets".  When/if the sale falls through, the Seller gets back a damaged house that will cost money to repair.

 

 

      7.   The Loan is Denied.  

      The Buyer goes shopping for a new car; they are just looking, but the Car Salesman makes them an incredible offer.  They purchase the car.  The Lender sees the new monthly car payment on their credit report.  The Lender calls the Buyer to inform them that, "The additional payment has exceeded your debt-to-income ratio.  You no longer qualify for the mortgage loan.  Sorry."

     8.  Wire Fraud

         The Buyer wires the the funds due at closing to a scammer in Eastern Europe who is posing as the Title Company.  The funds cannot be retrieved.  The Buyer has no more money.  They cannot buy the house.

 

____________________________

 

What Should You Do for Early Possession?

 

       See a Real Estate Attorney 

     The lawyer may draw up two separate documents:  (1) The Contract for Purchase and Sale, and (2) a Residential Lease.  The lawyer may advise the Seller to contact their insurance agent, to change their policy from owner-occupant to landlord-tenant.  The lawyer may advise the Buyer/Tenant to get renter's insurance.

      Speaking of Lawyers  

     As a Broker, the author of this article wants his own attorney to prepare a disclosure advising the Parties of the inherent risks in "Early Possession", and a disclosure that must be signed by the Parties that releases the Broker(s) from any liability resulting from Early Possession!

____________________________

 

Posted by

 

Frederick Griffin, Licensed Florida Real Estate Broker    850-545-1901

 

Tallahassee Florida Metropolitan Area

Exclusive Representation for Buyers and Sellers 

Call Fred  850-545-1901

 

 Realtor logo       HUD Logo Fair Housing

 

 

 

Frederick Griffin, Licensed Florida Real Estate Broker    850-545-1901

 

Disclaimer:  Nothing in the above blog article is to be construed as legal advice, tax advice, or financial advice.  For legal advice see an attorney.   For tax advice or financial advice see a tax attorney, certified public accountant, or other qualified professional.

 

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Re-Blogged 2 times:

Re-Blogged By Re-Blogged At
  1. Gita Bantwal 12/20/2018 04:00 AM
  2. Valeria Mola 12/06/2018 01:35 PM
Topic:
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Joe Pryor
The Virtual Real Estate Team - Oklahoma City, OK
REALTOR® - Oklahoma Investment Properties

That is quite the list but not part of it is not something that is worng. This is soemthing you do that is fraught with peril and liability.

Dec 04, 2018 05:57 PM #12
Rainmaker
329,380
Teri Pacitto
Compass - Westlake Village, CA
Real Estate, Your Style...Your Home...My Specialty

Great list and completely agree with you on all counts. 

Dec 04, 2018 09:11 PM #13
Rainmaker
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Marte Cliff
Marte Cliff Copywriting - Priest River, ID
Your real estate writer

The best answer is "No. I'm sorry, but NO." It could turn out fine, but the odds are against that.

Dec 04, 2018 09:18 PM #14
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Debe Maxwell, CRS
www.iCharlotteHomes.com | The Maxwell House Group | RE/MAX Executive | (704) 491-3310 - Charlotte, NC
Charlotte Homes for Sale - Charlotte Neighborhoods

Two biggies stand out for me - I always fear buyers' remorse! And, what if they decide to buy new furniture for that dining room (on credit, of course) and now they no longer qualify!

When I remind sellers of those two things, they almost always say, "No how, NO WAY," Fred!

GREAT post and your tips are SPOT-ON!! I couldn't agree more!

Dec 04, 2018 10:15 PM #15
Rainmaker
711,198
Robert Rauf
HomeBridge Financial Services (NJ) - Toms River, NJ

in NJ we call it a use and occupancy, and it certainly can have issues (and I think you touched on them all!) while it may seem nice to let them move in early it is certainly neater and cleaner to close and then move in.

Dec 05, 2018 06:01 AM #16
Rainmaker
2,815,427
Scott Godzyk
Godzyk Real Estate Services - Manchester, NH
One of Manchester NH's Leading Agents

Over the lst 30 years i have seen this happen to other agents. For me, the one time way back the seller said to let a buyer move in, i agreed to stop the pestering They found something they perceived wrong (the floors squeaked) and wanted a huge discount. They held the seller hostage not closing, refusing to move out and the seller split the difference with them. 

Dec 05, 2018 06:36 AM #17
Rainmaker
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Alesha A. Wilson, M.Ed.
Buy and Sell Oklahoma LLC - Edmond, OK
Buy and Sell Real Estate with Confidence

For me, this is a perfect example of the importance of asking "What is best for the transaction?"
Congratulations on the Feature!  Thank you for sharing Fred (:

Dec 05, 2018 07:08 AM #18
Rainmaker
335,340
Matthew Klinowski, PA
Downing-Frye - Naples, FL
Golf Community Real Estate Specialist

I highly recommend avoiding allowing anyone to move into the property prior to closing.  There are too many things that could go wrong and it's not worth the risk.

Dec 05, 2018 06:17 PM #19
Rainer
456,467
Kimo Jarrett
WikiWiki Realty - Huntington Beach, CA
Pro Lifestyle Solutions

Great illustrations and why moving in early must always be avoided.

Dec 05, 2018 07:13 PM #20
Rainmaker
1,899,340
Andrew Mooers | 207.532.6573
MOOERS REALTY - Houlton, ME
Northern Maine Real Estate-Aroostook County Broker

The pressure to close goes away when already have the possession. Buyer's already in. Now not so hot to trot to close this deal. The longer the delay to close regardless of early possession or if you decide to make it "I hear you knocking but you can't come in" is disaster. Like being on the operating table for too long. Complications. Emotions rise. Buyer wants to renegotiate all the way to the far away closing. Or life events happen to derail the sale.

Keep the pressure on the lender, attorney, appraiser who returns to check that repairs were done, whatever is holding up the closing to make it happen quickly. When pink slips and a lost of job, divorce papers are served, medical tests show something awful is going on inside the buyer or seller. Sorry Charlie. No closing. Great post Fred Griffin that explains the process of all the what ifs with early possession.

 

Dec 06, 2018 03:55 AM #21
Rainmaker
139,048
Eva B. Liland with Century 21 Doug Anderson
Century 21 Doug Anderson - Lancaster, CA
Glad to be of Service

I went through something similar the other day, trying to do right for both the buyer and the seller. It ended up being a no-go, putting the house back on the market instead. Oh well, it was probably for the best...

Dec 06, 2018 03:56 AM #22
Rainer
370,311
Rose Mary Justice
Synergy Realty Pros - Dandridge, TN
Synergy Realty Pros

This is the best article that I have seen on this subject.  These are things that most likely have happened.  

The best advice is to just say no.    Although it has happened I am sure with good results as well. But why  take the risk.  A few days will not matter that much in the long run and all will rest a lot better.

Dec 06, 2018 05:49 AM #23
Ambassador
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Fred Griffin
Fred Griffin Real Estate - Tallahassee, FL
Licensed Florida Real Estate Broker

Rose Mary Justice comment #23

    Early in my career, I was the Listing Broker for a house, and had the Selling Side, too.  Closing on Tuesday; Buyer asked to move in Friday.   Had all the right "reasons".   The moving truck was charging a daily rate for being parked, the hotels were expensive.  The Seller had already moved, the house was vacant.

       Seller said "Okay".   Buyer moves in on Friday.   On Sunday the Buyer called me to say that the Heater was not working.   

      Monday morning I had HVAC people come out.  The service guy told me that someone had cut one of the gas lines to the central heat and air unit, and somehow it had caused the thing to burn up!   Thousands of dollars to replace.  I know exactly who "someone" was.  He denied it; then refused to close unless the unit was replaced.

     Guess who lost most of their commission replacing that unit?

Dec 06, 2018 06:25 AM #24
Rainmaker
372,085
John Wiley
Right Move Real Estate Group- EXP Realty - Fort Myers, FL
Lee County, FL Real Estate GRI, SRES,GREEN,PSA

Fred, what a great piece of advice for buyers and sellers and agents.

Your list of things that could go wrong from an early occupancy, offsets any positive. And I don't think you listed anything positive.

Well done!!

Dec 06, 2018 08:13 AM #25
Rainer
95,618
Anne Corbin
Fritz Realty LLC - Spotsylvania, VA
Serving Lake Anna & Central Virginia

What a lengthy list of potential risks! I'm leery of early occupancy. Thanks for the entertaining and educational article.

Dec 06, 2018 09:11 AM #26
Rainmaker
1,183,210
Gene Mundt, IL/WI Mortgage Originator - FHA/VA/Conv/Jumbo/Portfolio/Refi
NMLS #216987, IL Lic. 031.0006220, WI Licensed. APMC NMLS #175656 - New Lenox, IL
708.921.6331 - 40+ yrs experience

Quick and simple answers .... NO.  I've had a client that (against advice) did this very thing and it turned out terribly for them, Fred Griffin.  Better to protect yourself as Buyer or Seller and not take this action ...

Great post!

Gene 

Dec 06, 2018 12:48 PM #27
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Mike Frazier
Carousel Realty of Dyer County - Dyersburg, TN
Northwest Tennessee Realtor

No, no ,no no,no,no,no,no,no,no

Need some horror stories where buyers moved in early. I got them!

Dec 06, 2018 12:55 PM #28
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Jeff Dowler, CRS
Solutions Real Estate - Carlsbad, CA
The Southern California Relocation Dude

Great tips, Fred, on a subject that occasionally rears its ugly head. There are so many things that could happen. Simplest solution is to not allow it. "No" is the answer. And you avoid having to pay an attorney.

Jeff

Dec 06, 2018 04:12 PM #30
Rainmaker
289,711
Wayne L. Brown
Franklin Advantage Inc. - Alpine, CA

We all know the best answer to this.

The question is, will parties follow it.

Great reminder of what Not to do.

Thanks for the insightful post.

Dec 06, 2018 04:29 PM #31
Rainmaker
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Georgie Hunter R(S) 58089
Hawai'i Life Real Estate Brokers - Haiku, HI
Maui Real Estate sales and lifestyle info

Great article about a sticky subject.  Just recently I had a seller/the listing agent allow my buyer client to move in early... it was a condo and it was an AS IS sale and thankfully nothing went wrong.

Dec 06, 2018 06:59 PM #32
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