Make Possession a Key
To Your Property Deal

Question: I recently bought a "forced close" home (not foreclosure). Escrow closed last week and the previous owners didn't leave the property at the time on which we all had agreed. Even though it has been more than two months since they accepted our offer and about a week since title was turned over, they say they need more time to get things in order. I am thinking about hiring an eviction attorney, but the people living in the home technically aren't tenants. Should I proceed down this path even though they have been served with judgment papers?

-- Wendy, Lexington, Ky.

Wendy: One of the more difficult situations in real estate occurs when a seller is left in possession of a property after the close of escrow. Any good real-estate agent should have told you that it is critical to get the seller out before you close the deal. Now you are stuck between a rock and a hard place. The sellers won't pay rent (since they don't consider themselves tenants), and they won't move out.

My suggestion is that you first try to convince the sellers to move out with friendly persuasion. You may even want to offer them an inducement -- such as $500 -- to leave. But don't hand over the money until they are out! Sometimes in a situation like this, the sellers need the cash to enable their move. And though this may seem insulting, it is cheaper than the other solution.

If it becomes clear that there won't be any movement, you will need to contact an attorney. He or she will undoubtedly want to file an unlawful-detainer action (eviction) and the matter will have to go to court. Assuming the sellers don't contest, the process could be resolved in about a month. If they do contest, the issue could take several months to resolve, and it will cost $1,000 or more.

In the few cases where I have allowed a seller to remain in possession of a home after the close of escrow, I forced them to sign a strict rental agreement providing for a specific rent and security deposit. But it is always best to insist on possession of the property as one of the contingencies of the purchase agreement; no possession, no close of escrow. The only exception is in the case of a foreclosure property, where you may be getting such a good deal that you are willing to take on the hassle of an eviction to make the purchase.

-- Mr. Irwin has more than 25 years' experience as a Los Angeles-area real-estate broker. He is the author of more than two dozen books about real estate and is recognized as one of the most knowledgeable writers in the real-estate field. Mr. Irwin's most recent book is "Tips and Traps When Renovating Your Home," (McGraw-Hill, 2000).

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