My wife and I are purchasing a home shortly. We are allowing the current owners to stay for a few days after the close of escrow (we are not agreeing in escrow because it is a short sale and it would complicate things). My preference is that we agree verbally on something in order to protect myself from having something in writing and allowing the former owner to have tenant rights. I feel that if it is just verbal, if they do not leave the premise on the agreed to date, I go in and say they are trespassing. My agent wants me to do something in writing but I disagree. I live in California for reference. Any advice?
4 Answers from Attorneys
I would insist on getting a 'tenant' or 'resident' free house. Otherwise you will end up spending money to get them out. They may even trash the place completely.
You want us to advice you as to how to lie?
Tashjian clearly has no significant experience with residential real estate transactions. It is completely normal and relatively common for the sellers of a property to not be able to move out by close of escrow and to negotiate a few days "rent back." There is nothing wrong with it, and it is no more likely that they will trash the place than that they would do so right before COE. If you don't trust them not to trash the place, why would you buy from them in the first place? As for your specific question, it is always foolish not to put an agreement in writing. Failure to surrender the premises after a sale is an unlawful detainer, just as if a tenant fails to vacate after the end of a lease. The legal process required to remove the occupant is the same. You don't just get to call them trespassers when they can claim a verbal agreement to hold over. The only difference between written and verbal is that with a written agreement if you have to go to court about it, you will have a document that shows the departure date. If it's verbal, you will say they agreed to be out seven days after COE, for example, and they will say you agreed to 60. It is NEVER advantageous to have a he-said she-said situation rather than a clear written agreement.
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