Fact Pattern: You are the buyer’s agent for a pending sales transaction. The buyer agrees to allow the seller to remain in possession of the property free-of-charge for 3 days after close of escrow. That agreement to remain in possession is properly documented by a standard-form C.A.R. Seller License to Remain in Possession Addendum (SIP).

Multiple Choice Question: Given the COVID pandemic, what should the buyer do if the seller refuses to vacate the premises after 3 days? Pick the best answer:

A. The buyer can resort to self-help, such as by changing the locks and removing the seller’s possessions from the premises.
B. The buyer can ask local law enforcement authorities to escort the seller out.
C. The buyer can commence an unlawful detainer action to evict the seller.
D. The buyer must wait until all COVID-related eviction moratoriums are lifted. 

Answer: Answer A is wrong. It’s true that the typical buyer has a tendency to mistakenly believe that, upon acquiring title and ownership, the buyer can do whatever the buyer wants with the buyer’s own property. Unfortunately, however, the law does not allow an owner to resort to self-help to gain possession of an occupied property. A buyer who resorts to self-help may be held liable for, among other things, monetary damages for a claim of forcible entry and detainer.

Answer B usually doesn’t work. A buyer may try asking the police or other local law enforcement authority to help get the seller out. Law enforcement, however, will generally opt to not get involved in what they consider to be a “civil matter,” but they have been known to help out occasionally (e.g., in smaller communities).

Answer C is the best answer. A buyer must generally commence an unlawful detainer action to evict a seller who refuses to leave as scheduled, similar to a landlord-tenant situation. That process typically begins with the proper service of a notice of termination. As the buyer’s agent, we would not take on those tasks ourselves. We would recommend that our buyer consults with an unlawful detainer attorney or eviction service. Sometimes, when a seller realizes that the buyer will be taking legal action, the seller will decide to leave voluntarily.

Answer D is wrong. The buyer need not wait for the lifting of all COVID-related eviction moratoriums, just those that apply to the buyer’s situation at the federal, state, or local level. Yet, both the current federal Center for Disease Control (CDC) and California statewide eviction moratoriums only prohibit eviction for nonpayment of rent due to COVID. These 2 laws are unlikely to apply to this buyer, given that the seller is not paying any rent, but the buyer should confirm this legal determination with the buyer’s own unlawful detainer attorney. Aside from the federal and state laws, the buyer should also check with the local city and county, which may have a broader COVID-related eviction moratorium.

-Thank you to Janet Caminite (Montecito Associate Manager) for suggesting this week’s legal tip.

Copyright© 2020 Berkshire Hathaway HomeServices California Properties (BHHSCP). All rights reserved. Any unauthorized reproduction or use of this material is strictly prohibited. This information is believed to be accurate as of November 16, 2020. It is not intended as a substitute for legal advice in individual situations, and is not intended to nor does it create a standard of care for real estate professionals.