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Has anyone in Arizona had experience with evicting a seller who remains in the home after COE without a post possession agreement?
I haven't had that experience yet. However, there is a strong possibility that the situation may come up with a closing that I have very soon, so I need to research the procedure.
It's not like a landlord/tenant relationship where there was an agreement, so the procedure is different.
I've spoken to my broker and he hasn't had that experience yet either, so he suggested the client get an attorney if it occurs.
I wan't to find the law that deals with this (trespassing I believe) but haven't found it.
So if anyone in AZ and especially Phoenix area has that experience, please let me know.
I realize that after the escrow closes that this is the client's responsibility; however, I need to provide the best service possible, and that means that I need to spend the time to do that extra work getting the information and provide guidance to help my client get into his new home.
In Texas, you'd need to start eviction proceedings ASAP.
Can you do a walk through the morning of closing? If they show no signs of being out the door, do not close or delay funding till you're sure they're gone.
I was recently in court evicting some of my tenants and there were two attorneys from mortgage companies in there having to evict the old owners after a foreclosure. I bet that is the only way to get someone out.
Has anyone in Arizona had experience with evicting a seller who remains in the home after COE without a post possession agreement?
I haven't had that experience yet. However, there is a strong possibility that the situation may come up with a closing that I have very soon, so I need to research the procedure.
It's not like a landlord/tenant relationship where there was an agreement, so the procedure is different.
I've spoken to my broker and he hasn't had that experience yet either, so he suggested the client get an attorney if it occurs.
I wan't to find the law that deals with this (trespassing I believe) but haven't found it.
So if anyone in AZ and especially Phoenix area has that experience, please let me know.
I realize that after the escrow closes that this is the client's responsibility; however, I need to provide the best service possible, and that means that I need to spend the time to do that extra work getting the information and provide guidance to help my client get into his new home.
Thanks in advance
First off, I'd be in touch with the other agent and make sure that s/he conveys to the seller that in AZ possession transfers at the time the deed is recorded. Since we can have multiple walkthrough's here in AZ, I would conduct one last walkthrough late in the day the day before closing and see if the owners are out, or are close to being out. If it looks like it's going to be a problem I'd be ready with a Cure Period Notice. This will extend the closing another 3 to 5 days. It's imperative that the sellers understand they have to be out of the house at COE. If they absolutely cannot then there needs to be a post-possession agreement, thoroughly explaining the need for proper insurance coverage during the post-possession period. The seller's current homeowner's coverage will no longer apply since he no longer owns the house.
By the way, a really good escrow officer can be invaluable in these situations. I hope you've got one that can convey the seriousness of the situation to the sellers and will work with you on the closing.
I really think once the sellers realize they won't get their money til they get out, it may motivate them to move a little more quickly. In lieu of the above suggestions, you could try some sort of seller holdback to cover possible damage and legal costs should you need to get an eviction. My first option, though, would be to use the Cure Period Notice, 'cause once it's closed it's going to be much more difficult to get things done.
Please tell me this isn't a short sale situation where the seller has no motivation to get out.
...
Please tell me this isn't a short sale situation where the seller has no motivation to get out.
Doesn't just have to be the original owner/occupant either. I have heard of several landlord that have gone belly-up and not told the tenants that anything is changing. They've gone on collecting rent but not applying a cent of it to the mortgage. Once the bank wakes up they are too busy with other situations to actually do an eviction...
Proceed with caution. An angry tenant or former homeowner can basically blow-up/burn-down the place and with no insurance you could be walking off a cliff!
First off, I'd be in touch with the other agent and make sure that s/he conveys to the seller that in AZ possession transfers at the time the deed is recorded. Since we can have multiple walkthrough's here in AZ, I would conduct one last walkthrough late in the day the day before closing and see if the owners are out, or are close to being out. If it looks like it's going to be a problem I'd be ready with a Cure Period Notice. This will extend the closing another 3 to 5 days. It's imperative that the sellers understand they have to be out of the house at COE. If they absolutely cannot then there needs to be a post-possession agreement, thoroughly explaining the need for proper insurance coverage during the post-possession period. The seller's current homeowner's coverage will no longer apply since he no longer owns the house.
By the way, a really good escrow officer can be invaluable in these situations. I hope you've got one that can convey the seriousness of the situation to the sellers and will work with you on the closing.
I really think once the sellers realize they won't get their money til they get out, it may motivate them to move a little more quickly. In lieu of the above suggestions, you could try some sort of seller holdback to cover possible damage and legal costs should you need to get an eviction. My first option, though, would be to use the Cure Period Notice, 'cause once it's closed it's going to be much more difficult to get things done.
Please tell me this isn't a short sale situation where the seller has no motivation to get out.
It is a short sale. The listing agent has informed the seller that he must vacate by COE. Seller has dragged his feet through the entire process and has not even begun to pack.
My buyer will not do a post possession agreement because then the seller becomes a tenant with tenant rights and opens up a whole other can of worms. If he remains past COE then he is trespassing on the new owners property, so eviction is a different process than evicting a tenant. But I haven't found a law yet to cover that.
I'll check with the escrow officer to see what he says. The bank will definately not want to extend the escrow date. They've reluctantly extended it once. I don't know if the escrow officer can hold up transfer of the funds if the seller is still in possession after COE so a cure period notice may not be applicable at that time. The sale has already been recorded.
I'll let you know what I find out.
Last edited by Captain Bill; 06-02-2008 at 03:32 PM..
Reason: typo
Oooh - definitely one of those "between a rock and a hard place". I have heard of doing an eviction in such a case. I think you're looking at 10 days from what I've heard. Once that deed is recorded then the seller is trespassing. I think your escrow officer would be a good place to start, and then call the sheriff's office since they're the ones that have to do the actual eviction. I would also definitely advise your client to get some legal advice.
One more reason why I'm not excited at doing short sales. It seems like there are so many headaches that arise.
Sorry for your headaches on this one. . . . And people think realtors are overpaid. There are some deals like this that when you get that commission check (after splits, fees, etc) you wonder if it was really worth it.
Does the bank understand what is going on? What does the bank say? Do they have a standing in this at all?
The bank would have no control over the sellers actions. Also, the seller has until COE, which is the time of deed recording in AZ, to vacate the premise. So any discussion of them not moving out is only speculation at this time, and nothing can be done until escrow has closed and if the seller remains.
I talked with the Sheriff office and they say the buyer has to get a writ of restitution from superior court and after that it takes a week to two weeks to get the officer out there.
Prior to that a notice of forcible detainer must be given.
Forcible detainer deals with illegal post possession, and other types of illegal possession.
If you go away for several months, as snow birds do, and return to find someone living in your home, you have to go through this procedure. You cannot just call the police and get them out. Strange isn't it? I would call the police anyway.
The AZ statute that deals with Forcible Entry and Detiner is found here: Arizona Revised Statutes
Scroll down to Article 4, section 12-1171 to 12-1183.
That's the long answer. The short answer is get an attorney so that the procedures are performed propertly.
If this does happen, then I'll be trying to work it out in a manner that does not resort to getting an attorney involved. It all depends on what the situation is when I go to get the keys from the lock box. I'll go there by myself to get the keys, and if it's still occupied, I'll see what the intentions are. That way the buyers and sellers don't have a confrontation.
So illegal post possession is called Forcible Detainer, and it requires a Writ of Restitution being filed in court and signed by a judge to get someone out. That could be similar in other states.
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I was wondering the same thing too...
There are some deals like this that when you get that commission check (after splits, fees, etc) you wonder if it was really worth it.
