Remedies for Leftover Junk on Closing (Ontario)

Question:

We are now closing for our buyer client on a home sold “as is”. In the agreement we did not include any clause to the effect that the home would be free of personal items etc.

In the first buyer visit, buyers were concerned that the items in the garage (old broken crap/garbage) and items in the house (storage room, crawl spaces etc.) have a bunch of crap in them and would not be removed from the home before closing by the sellers.

The Buyer is concerned that the seller is going to leave all their “crap” and have to remove it themselves. Can the Buyer maintain a “holdback”?

Answer:

The Agreement of Purchase and Sale “vacant possession” clause requires the removal of the items you mentioned. The “as is” provision is of no consequence.

There is no right to maintain a holdback. Doing so, is just gambling and runs the risk of significant damages from the Buyer’s perspective, substantially more than the amount in issue.

My guess is that someone will remove these items for less than $2,500. A lawyer’s demand letter is good and usually works. But remember, nothing has happened yet.

To take it one step further, have the Small Claims Court statement of claim drafted and have it sent along in “draft” format. At that point, it’s just the filing fee away from a lawsuit. Usually, that step is sufficient and the Seller will comply and simply say, “of course, I intended to remove all that stuff anyways”.

While it’s helpful to have the broomswept condition clause, the vacant possession requirement still calls for the junk removal.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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