A: You have an interesting situation on your hands. Normally, you buy a house and the home is yours at the point you exchange papers for consideration, otherwise known as the payment.
The whole purpose of the closing is to give you ownership and possession of the home. In certain circumstances, the seller might negotiate for a post-closing possession of the home, but that’s normally when the seller needs or wants to stay in the home for a certain period of time after the sale.
So, unless you negotiated some right to allow the seller to remain in the property, we’re not quite sure why the former owner is trespassing through your property. Frequently, when a rental apartment goes through a fire, the landlord immediately terminates the lease and the tenant might need to get into the damaged unit to gather whatever belongings can be salvaged.
We assume your situation is different. When you purchased the home, we would think that the purchase contract conveyed the home and its contents to you as they were on the day of the sale. This would mean that whatever was left behind would now be yours. We don’t think it is fair of the seller to sell the home to you in its “as is” condition and then pick and choose what the seller wants from the home after closing.
If you closed the deal with a real estate attorney, talk to the attorney to figure out what’s going on. You need to understand more about what rights you have under the purchase and sale agreement for the home and what, if any, rights were given to the seller to remove anything from the property.
The real question is why didn’t the seller come to you and ask permission to recover some personal items? We’re sure you’d have been fine with giving the seller access to remove those items. We think it’s strange that the seller filed an emergency motion to get into the home and think this indicates that the seller knew that she shouldn’t be going back to the home but could if she convinced a judge to give her access.
Did you participate in that motion? If you didn’t, you might have a legal right to go after the seller. Not sure it’s worth your time and treasure. It would depend on what you thought the seller took out of the home or if she caused any further damage. If you used an attorney to close on the home, that should be your next call. If not, you may want to find one and ask some questions.
The seller is taking advantage of you and the situation. From where we sit, that isn’t fair: Either the seller sold the property to you with everything that was in it or not. If she did, she shouldn’t get access. If she did, you need to know what rights she has and for how long.
With the property in such poor shape, consider securing the site and figuring out whether your next step is to restore the home or tear it down.
By the way, we think the waiver of liability issue is a red herring. While it would be good to have a waiver, you should have insurance to cover you in case something happens at the property. In any case, keeping the seller (and anyone else) out of your property is your best bet.
Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact them through the website, ThinkGlink.com.
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