Legal Question in Real Estate Law in California

Usually the sale contract provides a date and time when possession will be delivered. Normally this is the day of closing. On the day of closing, before actually closing, a walk through of the property should be performed to confirm that the property conforms to the contract. You want to confirm, as just a few examples, that fixtures and appliances that were supposed to be included are still there, no garbage has been left behind and, of course, that the property is vacant, among other things.

If during the walk-through you find that the property is not in the condition specified in the contract (e.g., it is not vacant) then you should make demand on the seller to perform the contract and refuse to close until the seller does. You have much more leverage to get the seller to move out BEFORE the sale closes than you do after the sale closes.

You have two options. 1. Request an escrow instruction withholding some money until the owner moves out and the buyer releases the remaining funds. The buyer could sweeten the offer by adding some cash to the amount being paid to the the seller. Withhold the funds until the owner has fully vacated the property and handed the keys to the buyer. There is often a penalty for every day after the closing or other date for vacating the property.

2. Use the eviction process to remove the owner. Hire an eviction attorney to do this.

Whether you can do anything preventive or defensive in advance of closing may depend upon whether the purchase-and-sale contract is all wrapped up and submitted to escrow, or not that far along. Once you are "in contract," you have little or no room to tighten up on the terms. In such a case, probably informal inquiry, reminders and prodding may be effective. Many sellers are just lazy, forgetful or procrastinators when it comes to packing up, arranging with movers, finding temporary housing if that's going to be necessary, etc., and will respond favorably to a little "heat" from the buyers in terms of reminders about their duty to vacate, the readiness of the buyer to enjoy the new property from Day One, etc.