Buyer’s Options if Seller/Landlord Cannot Close


The Seller enters into an agreement with a Buyer to convey the property which happens to be tenanted and provide “vacant possession”.

The Tenant refuses to move and so the Seller is unable to provide vacant possession, What options are available to the Buyer?


The Buyer has the right to:

  1. Affirm the contract, tender on closing and then sue for Specific Performance and/or Damages:
  2. Terminate the Agreement, tender on closing, and sue for the return of the Deposit and Damages.

This is most unusual since the Seller should have included a clause:

  1. Extending the date for closing, and
  2. Upon reaching a further date, having the right to terminate the sale if the Tenant was not out.

The failure to include such a clause for the benefit of the Seller would ordinarily constitute negligence on the part of the Real estate agent acting for the Seller.

The agent should be familiar with the rules related to Tenant eviction by the Landlord and Tenant Board. If aTenant refuses to vacate, it can easily take 7 to 8 months just to get to a hearing. And, then what if they said “no” or there was an adjournment?

Brian Madigan LL.B., Broker

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