When The Seller Will Not Leave: The Unusual Situation of Seller Occupancy Post-Closing.
Many residential real estate transactions involve a situation where the seller wants to remain on the property after the closing. The benevolent buyer may allow the seller remain on the property in order to collect rent, reduce the sales price or in a situation where the buyer does not need to immediately occupy the property.
In fact, standard Rider U to the FR/Bar Contract provides for such a situation by making the entire agreement:
contingent upon Buyer and Seller within [ten (10)] days prior to Closing Date delivering to each other a mutually acceptable written lease . . . .
The lease should not be taken lightly and should be prepared by a qualified attorney.
The Importance of the Lease
When the buyer and seller sign the lease allowing the seller to remain on the property post-closing, the parties enter into an unfamiliar relationship in that the seller, now the tenant, possesses certain rights under the lease and Florida law. Even where the tenancy is short and the buyer expects to take possession in a few weeks, the buyer should seek out a qualified attorney to prepare a lease to protect the buyer during this unusual situation. There are a few issues a buyer should consider prior to agreeing to lease the property to the seller, such as, but not exclusive to:
- Consider who should make repairs. The typical lease places the burden of repairs on the landlord. A short term lease with the seller may require differing obligations, especially where a home inspection reveals repair needs.
- Consider your property insurance. The buyer should notify their new insurance carrier to the short term lease before the closing to confirm the buyer will have proper coverage in case of an incident. In addition, the short term lease may cause the buyer’s home owner insurance premiums to increase.
- Consider your new homeowner’s association. Make sure the homeowner’s association knows and approves the lease prior to the closing as some homeowner’s associations do not permit short term leases.
- Consider the possibility of an eviction. A seller who refuses to leave at the end of their short term lease presents a serious problem because the buyer may have no place else to go. While the buyer has recourse in an eviction, this is of little consolation when the buyer cannot move into his or her new home.
Conclusion
Not only does post-closing occupation require a lease between the buyer and the seller, the buyer should retain the services of a qualified attorney to navigate the issues presented by a short term lease and prepare the lease to fully protect the buyer.