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Vacant Possession
Michael E. Cobb
Michael E. Cobb
Michael E. Cobb
Mike is a founding partner in the firm and brings a wide range of knowledge of the real estate market in southern Ontario.

When do you get vacant possession (the right to move into the house)? This is a common question, along with when do you get the keys, when homes are bought and sold. What does the law say? Technically, the house is yours when your lawyer pays the money over to the other lawyer and registers the deed (these days, most payments are done by direct deposit into the trust account of the sellers' lawyer). At this point, the house is supposed to be empty. However, it does not always work out this way. Many sellers either get behind in their final packing or have movers who are late in their work. This leads to situations where the buyers can be parked in the driveway of their new house which they own but cannot move into because it is still occupied. This problem can be compounded when the purchase is part of a chain of house closings so there might be a number of buyers in this situation.
In extreme cases, this can lead to law suits as shown by a classic case in London, Ontario in the early 1990's. It was a Friday. The Foords, who were from Toronto, arrived at their new home, along with a moving truck. They waited for several hours. When there was no indication that they would get possession from the Smiths, they decided to return to Toronto since the truck was needed by the moving company the next day on another move. The Foords returned the following Monday with the movers and were then able to moved into the house. They incurred additional moving expenses in the sum of $1,393.91 plus hotel and other expenses of $401.55.
The Foords sued the Smiths in Small Claims Court and won on the basis that the delay was significant and amounted to a fundamental breach of the contract by the Smiths. They recovered their damages and court costs.
This case reminds us that when the sellers' lawyer receives the purchase price and hands over the keys, the sellers should be completely moved out of the house. Thus, if they need more time, they run the risk of being responsible for the expenses of the buyers.
Michael Cobb is a lawyer at the law firm of Cobb & Jones LLP. Should you have any questions for Ask A Lawyer, please direct them to the Simcoe Reformer or ask a lawyer of your choice.

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