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Possession Day Woes - What to Do if Things Aren't as Expected?

Possession days. Being a Realtor we see a LOT of possession days with our clients whether that be on the Buying side or the Selling side.  While possession days can be an amazing celebration, they can also be a cause for concern in some cases. Sellers are supposed to leave the home in the same condition it was when the purchasers viewed the property but that isn’t always the case.


Best case scenario you get the keys to your new home, your keys work to get into the home and when you test all the appliances and mechanical parts of the home they are in the condition you saw them when you viewed the home and made your offer. Awesome!


However, this isn’t always the case and some clients are more sensitive to these issues than others. A home is a used commodity. Even new construction homes rarely are perfect on move-in day and usually have a period of repairs for which the Builder attends the home and does touch-ups.  But that isn’t the case for a re-sale home. Sure everything is meant to be in the same condition as when you offered but what if it isn’t? For example, Sellers are required to give access to the home on possession date, that does not necessarily mean that they have to provide you with keys to the home. It could be an access code for a keypad or it could be a garage door remote. We have even had clients in the past where the access given was a window left open a crack, true story. Now, I wouldn’t consider any of those options to be great ones and we have paid many times for locksmiths for clients who couldn’t get into their house on possession because the keys or code didn’t work, or were altogether missing.


But why am I mentioning these situations?  Well mostly because possession days can be challenging. As much excitement as there, is you have to remember that this is likely one of the largest purchases most will make in their lives. So, taking stock of the home and functioning systems is an important part of that possession day routine.


With home sales the important term is caveat emptor, which is Latin for “buyer beware”. This places the burden on buyers to reasonably examine an item for sale (in this case a home), also known as due diligence, and take these factors into consideration prior to submitting any offer to purchase. Now let’s say all you have properly examined the property (whether be it your trained or careful eye or via inspection) and you have done all your due diligence.  Your offer was accepted and now it is your possession day! You pull up to your new house, you move in and you start living your life. Now a week goes by and all of a sudden there is a clogged toilet, or a tap starts to leak, who is responsible for that? The Sellers? The Buyers? If you go by case law, it is most likely the Buyer’s issue. An offer to purchase, unless specifically listed in as-is condition, typically requires the home and chattels to be in the same condition they were in, at the time of submitting an offer. Many agents will also add in a line item that specifically asks for mechanicals, plumbing, electrical etc. to be working on possession and sometimes even past possession. This can be referred to as a promise that would survive closing.  Most real estate lawyers will try to eliminate a promise like this or ask that it be shortened to just the day of possession. The reason being, Sellers do not want to be responsible for a warranty once they no longer own or have access to the property. Sure, the lights should work when you flip the switch and the water should run down the drain but like anything else all parts of a home need to be maintained and can break down over time.


The real trouble comes when you do check EVERYTHING on possession day and items might not be working as expected. We have seen it all - clients moving in and appliances were swapped, or inclusions on the contract were removed from the property. Seriously, it is unfortunate but these things do happen. We try to the best of our ability to represent the home and the clients and ensure the transaction goes smoothly. But there is a human element to every move – and definite room for error as result.


Here are some tips to help protect you on possession day.

Sellers:

  • Take meter readings (photos with time stamps are ideal)
  • Take video of sinks/tubs/toilets/fixtures draining and running with no leaks. We often fill the sink or tub to “force” a load of water, just to show it is operating properly.
  • Take video of lights working
  • Take video of the appliances working. If they are staying with the home, that is.
  • Check your keys! If you have multiple keys for the property, kindly give one to your lawyer (so that the Buyers can walk through that front door on possession).  Leave the rest on the kitchen counter.


Buyers:

  • Check all appliances included with the sale
  • Run the cycles on everything (dishwasher, dryer, washer, stove). It is important to test and notify of anything not functioning properly, right away.
  • Take meter readings (photos with time stamps are ideal)
  • Test the furnace and A/C (weather permitting for this one.  Don’t try to run it in the dead of winter!)
  • Also test fireplaces, hot tubs, jacuzzi tubs, etc. If there is a motor in it, you should likely test it.


If everything is working, then great!! Order a pizza and pat yourself on the back for moving all of your heavy furniture into your home.


If something isn’t working or you can’t figure out how to operate something, reach out to your realtor. It is not uncommon for your Realtor to reach out to the Realtor for the other party and get some answers on how to operate different items within the home.  If it is something that requires servicing from a tradesperson, then it would be a good time to get someone to your home. Who is responsible should really take a backseat to having something working, especially if it is something like a furnace not firing in -30°C in January. Sometimes it is easy and parties are willing to work it out between themselves. Sometimes it is not, and your only real recourse in those situations is to try and recoup your money from them in small claims court, which no one wants to do. But putting people on notice to issues is incredibly time sensitive.  As a Buyer, if you find an issue, the further you are away from possession, the less chance you have of proving it was a Seller issue.


At the end of the day, our best possession days are those when everyone is happy and they find the home just as they had expected it. We will do everything in our power to assist you in the process no matter what situation arises, we know who you will need to call and always have a list of good service providers in almost any industry on hand.  So always be sure to reach out to your Realtor – no matter how big or small you think the issue may be.


Here’s to plenty more happy possession days in 2023!!



Best real estate agents in winnipeg manitoba#AgentLogan


Logan Queen

Tel: (204) 226-1261
Email: Logan@JenniferQueen.com

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