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Sellers Left Junk In My New Home, What Can I Do?

Posted on: Tuesday November 11, 2014

Most real estate lawyers have probably had a client call them after closing, to complain about sellers leaving unwanted items behind.  I have personally received e-mails with detailed photographs of nothing but junk.  When this type of situation is discovered after the transaction has closed, the purchasers generally try to resolve it through communications between the lawyers or real estate agents, or by getting rid of the items themselves.

 Can I refuse to close?

When a situation like this is discovered before closing, purchasers sometimes ask, “can I refuse to close?” The answer in most of the situations I have come across has been a clear “no.”  In some situations, however, it may be possible to refuse to close.  This type of situation involves the concept of “vacant possession” — something the seller is supposed to provide to the buyer in a real estate transaction. This means the property should be free of people or things (no impediment) once the purchaser takes ownership.

What if I can't move in because of remaining belongings?

The greater the seriousness of the situation, the greater the likelihood that a buyer can refuse to close. For example, if a seller left behind a couple of garbage bags in the garage, or an old barbecue on the deck, the purchaser would likely still be required to close the transaction.  

However, if there was furniture scattered throughout the house so as to not allow the purchaser’s to fully move in, this would make it more likely that the purchasers could refuse to close.  The ultimate decision can only be made by a court, but here is a general rule approved in an Ontario Superior Court decision:

"It must be an impediment which substantially prevents or interferes with the enjoyment of the right of possession of a substantial part of the property." 

If circumstances do not meet this test, then the purchaser would have to close, but could then take legal action after closing.

If you’re in the mood for some case law, look up Ramatrol Corporation v. Chairtex Inc. (2002).

 

Written By: Vic Bansal, B.A. (Hons.), J.D., Associate Lawyer