Q: What rights do we have to take possession of our new house per contract?
We are closing on our new home and the seller has her daughter living there on a month to month lease. She gave her a 30 day notice to vacate On March 2 and again on April 1st. The contract is signed by both the seller and us that we take possession 5 days after close. If the daughter has not moved, what rights do we have to take possession on the 5th day?
A: If the month to month lease was recorded you would have constructive notice of the lease. As it is, you have actual knowledge that a month to month lease existed, and was terminated by giving a thirty (30) day notice of cancellation on March 2, 2021. As of April 1, 2021, the tenant no longer has a right to occupy the premises. The seller should issue a three day notice to vacate and immediately file an eviction action.
If the tenant does not vacate the premises in time for you to take possession five (5) days after closing, then the Seller will be in breach. Your purchase agreement may speak to the remedy for failure to provide possession. However, the tenant can not be forcibly removed, and an eviction action will need to be filed.
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