Legal Question in Real Estate Law in California

Re: Sellers agent insisting on changes after counter offer accepted...

Well the purpose of the escrow is to ensure each provision of the contract is fullfilled at the time of closing. It seems to me that the seller is now trying to change the terms of the contract. You can either waive the eviction term and do the eviction yourself, or you can insist upon the eviction before escrow closes. If the seller does not agree and escrow is not completed you can then sue for Specific Performance of the contract since it is a contract for Real Property. Specific Performance would force the buyer to abide by the terms of the contract. Its up to you!!

Re: Sellers agent insisting on changes after counter offer accepted...

Here's another slant on it. You are entitled to possession (free of tenant) upon close of escrow (which is usually considered to be when the deed is recorded).

The seller is not in breach of the purchase agreement unless and until he fails to deliver possession when he must. This is not until after close of escrow. He has given some advance signals that he may fail to perform according to contract, and in many circumstances this would be a ground for you to pull out and sue at once. It's called "anticipatory repudiation."

The problem with any pre-closing lawsuit on any theory is that it's expensive and likely to kill the deal. You have to ask yourself whether you want to take that expense and risk, or whether the lesser of evils is to take ownership then deal with the tenant if that does indeed turn out to be necessary.

If you choose to go ahead and close on time without suit, and you then discover that the tenant has moved or is in the process of moving, you've worried for naught. If on the other hand the tenant is still there, you then get a professional eviction service to do the dirty work for you, and send the seller a bill for the cost of the eviction plus the rental value of the property during the time you weren't able to use it and any incidental expenses you incurred such as motel and storage. The seller, having failed to deliver possession as warranted, is liable for at least some of the foregoing damages, and if the seller refuses to pay (remember, escrow is now closed), you can sue in small claims. Probably a lower cost and lower risk alternative. Be sure to forewarn the seller in writing that you expect possession immediately at COE; although it is your right it eliminates any counter-argument that you waived the right.