Seller Fails to Vacate: Any Remedies in Ontario?

Question:

I am a Buyers’ agent. The sale closes and the Sellers have not moved out! Buyers’ lawyer just told my buyers basically too bad there’s nothing that can be done.  Of course, I’m paying for a hotel room tonight. What exactly does vacant possession mean? Apparently, the deal closed at 4:00 pm and it’s now 9:30 pm and the Sellers are still there. I’m sorry but am I unreasonable to say trying isn’t good enough and Seller or Sellers’ agent should be stepping up?

Answer:

Very difficult problem here. There really is no good legal answer. There is no right to a holdback. Perhaps, there ought to be but there isn’t.

The time of closing in the OREA document is not clear. It should be specified but it isn’t.

Many times, both lawyers can’t tell their clients a day ahead, when it will close. So, the Buyer is hoping early, and the Seller is hoping late. The problem is that they both are moving that same day. No real time for the broomswept condition even if they wanted to.

Possession in this case should have been available at 4:00 pm which was the time of closing in this case. If the Seller is not out, it is risky for the Buyer to go in and ” take possession”.

There are two additional issues relating to insurance. Does the Seller still have insurance? Will the Buyer’s insurance start if the Buyer doesn’t have possession? The least risky move is for the Buyer to stay out, book a hotel and sue for damages the following day.

Document the additional costs and sue afterwards for the loss.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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