Disclaimer: This information is intended to be of a general nature. Please do not rely on any of the content as being a professional tax or legal opinion and seek your own independent advice.
The process of selling your home can be stressful; keeping it looking its very best all the time is tough going, especially if you have children and home opens and frequent buyer inspections can be quite disruptive. Celebrations upon a successful sale fade when faced with the daunting task of packing up your life and moving.
Being well organised is the key to a smooth moving day yet even best laid plans can go awry such as an unexpected delay in settlement. In some ways it is unfortunate that the contract demands very tight timeframes between the time of settlement and when possession occurs.
If the property purchased is the primary place of residence of the seller, then possession is allowed no sooner than 12 noon the day following the settlement. Not that long really and most agents have stories of turning up to meet the buyer and their removalists only to find the previous owner still in the middle of moving out. There are sound, mostly legal, reasons for such a tight time frame, a period even tighter where the property is not the sellers’ primary residence when possession must coincide with settlement.
In these circumstances, the seller needs to be sure their tenanted property is vacant at settlement and not just planned to be vacant. It is not uncommon for a tenant to remain in a property beyond the date of lawful notice.
Sellers who have contractually warranted that all electrical, plumbing and gas fittings and appliances are in working order at settlement ought to be doubly sure everything works at the time of the buyer’s final inspection. Discovering the alarm system doesn’t work a few days before settlement is almost certain to delay things as the buyer will want to satisfy themselves it is repaired before attending settlement.
There are penalties applied to either the buyer or seller in the event settlement is delayed beyond three business days but more significant legal problems develop if possession is denied by the seller beyond their lawful entitlement.
When buying a vacant property, moving can be made simpler particularly if the seller allows the buyer possession prior to settlement. REIWA members use a standard form that attempts to cover all eventualities arising from the granting of possession prior to settlement although those considering this option ought to be clear of their legal obligations under such agreements.
Certainly, once the contract is formed, it is usually a good idea not to mess with it and possession prior to settlement does have an element of risk attached but should be considered on a case-by- case basis. Certainly, from the buyer’s point of view, it can be extremely helpful when under the pressure of moving house.
These comments are the writer’s own and do not necessarily reflect the current opinions and policies of the Real Estate Institute of Western Australia.
By Hayden Groves
REIA Deputy President