Buyer Renting Out the Seller’s Property

Question:

Can the Buyer following an Agreement of Purchase and Sale advertise the address, use MLS photographs and bring prospective renters through on the “revisits”.

Answer:

There are several important issues here. Once we have an Agreement of Purchase and Sale in place, the Seller has already provided to the Buyer an “interest in land”. It is an “executory contract” which means that the actual closing and transfer of the property will take place at a later time. But, a deal is a deal, and the Buyer has some important rights which arise immediately. He may sell, assign, or rent the property. He can do that once the Agreement of Purchase and Sale is in place. There is no need to wait for closing.

The Buyer’s real problem is advertising, marketing and showing the property. I don’t see any issue with the municipal address. It is the correct municipal address, and the rental is to take place sometime following closing. Whether the Seller likes that or not, the Buyer bought the property and that indeed is the municipal address. The correct information may be advertised on the internet on a variety of websites.

The use of photographs is another issue entirely. Whoever owns the copyright can control that. However, sometimes it is difficult to prove who has what rights and a lawsuit is an expensive and inadequate remedy here.

The next issue is “revisits”. The Seller does have the right to control attendance. It would seem odd that the Buyer could bring anyone along. That would have to be covered off in the revisit clause.

Naturally, it would have been nice to know about this ahead of time. Then, the Seller could co-operate, upon certain restricted negotiated terms. It could be problematic in terms of financing for a Buyer, if they are not planning to occupy the premises personally, and they require secondary financing and that lender needs the property to be rented. This could place the closing in jeopardy.

Brian Madigan LL.B. Broker

www.OntarioRealEstateSource.com

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