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There are risks in allowing a buyer to have pre-occupancy

By ERIC FEICHTHALER - Real Estate Law | Dec 23, 2020

Eric Feichthaler

Dear Mr. Feichthaler,

I am selling my home to a really nice family, and the closing is scheduled for next week.  They have asked if they can have the keys to move in a few days in advance, so they can move furniture they have in storage and have the house for Christmas. Their loan cannot fund the purchase until Dec. 28, so the closing cannot be moved up earlier. 

Do you see any issues with this request?

— Chase K.

Dear Chase,

I have seen this type of situation before. There are a multitude of reasons a seller would like to work with a buyer to get them into the house before the actual transfer. However, you must be aware of certain risks in allowing a buyer to have pre-occupancy. 

First, anything that occurs to the house prior to the closing would be your responsibility. If the buyers caused a catastrophic issue, like a fire, they probably won’t go forward with the purchase, and you would be left to deal with the damage. 

That example is admittedly unlikely, but what could happen is the lender falls through on the loan, for whatever reason. Now the buyer is living in your house, and you cannot physically remove them.  That means you would need to proceed with an eviction, even if you prepared a valid pre-occupancy lease and addendum to the purchase contact. In these times, there is no guarantee on the timing of how fast an eviction can occur.

We have worked with many buyers and sellers to navigate these issues, and advice can vary based on the specific situation and the relationship between the buyers and sellers.  As with any real estate transaction, make sure you are protected from potential issues before signing the contract, and especially before allowing a buyer to take possession of the house.

I wish you and all our readers a Merry Christmas and Happy (Much Happier) New Year in 2021!

Eric P. Feichthaler has lived in Cape Coral for over 33 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, Cape Coral Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 20 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator.

Mr. Feichthaler can be reached at eric@capecoralattorney.com, or (239) 542-4733.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.