by Phoenix attorney Christopher A. Combs, partner with Combs Law Group, P.C.

Question:

The purchase of our home in Mesa closed last Friday. We had the moving van reserved to move into our new home on Saturday, but the seller refused to leave because his new home had not been completed. The seller has promised to leave in a few days. In the meantime, however, we are staying in a motel, and all of our belongings have now been moved into storage. How can we guarantee that the seller will move in a few days when he already agreed to leave last Friday?

Answer:

Under the standard contract you should immediately furnish a Three-Day Cure Period Notice. In other words, if the seller does not leave the home within three days, the seller will be in breach of the contract. Unfortunately, after the seller is in breach, you are probably required to give the seller an additional five-day notice. If the seller has not then moved out, you are entitled to file a forcible detainer action in Superior Court. A.R.S. 12-1173.01. Therefore, you should probably contact a real estate attorney immediately to deliver the necessary written notices, and to file the forcible detainer action. The seller has already broken one “promise” in the contract to move out, so do not rely on any more promises. The only “good news” in this bleak scenario is that your damages, attorneys fees, and court costs should be recoverable from the seller.

The above is for informational purposes only and is not intended as definitive legal or tax advice. You should not act upon this information without seeking independent legal counsel. If you desire legal, tax or other professional advice, please contact your attorney, tax advisor or other professional consultant. Reprinted with permission. Copyright 2007, all rights reserved.

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