September 21, 2017

Our clients were a family that had just bought their first home.[1]  At closing, their lawyer (not us!) did not think it was important that the seller was not ready to get out. Of course, an escrow was held, which would cover a steep per diem for the seller to remain for two more weeks. We were hired, however, after the escrow dwindled, and the seller was still there six weeks later! Our clients were heartbroken; they had waited so long for this closing. Their mortgage payments were now due and they were still paying rent.

I had to do an RPAPL § 713(8) predicate notice (“The owner of real property, being in possession of all or a part thereof, and having voluntarily conveyed title to the same to a purchaser for value, remains in possession without permission of the purchaser.”)

It was tricky though, because the house was divided into two apartments and the seller’s adult family members lived in the downstairs apartment. So…what was the legal status of those people with respect to the downstairs apartment after the sale? I mean…they weren’t the seller, now were they? So, were they RPAPL     § 713(8) tenants? Or tenants-at-sufferance? Or something else? I always say step one of any landlord and tenant litigation is figuring out the legal status of the occupant. I gambled that 718(8) applied to the whole lot of them. Well, the world will never know if I was right. The downstairs occupants defaulted and I got a judgment against them easily. 

However, the upstairs occupants, the sellers, remained to become one of the most contentious evictions I have ever seen. On eviction day – yes, it got to eviction –  when a tow truck arrived to take away seller’s vehicles parked on the lot, the seller chained his poor angry dog to the tow truck door as the tow truck operator was attempting the hook up. The police were called and arrest everybody – even the tow truck driver. Ugh…you can’t make this stuff up.

Here’s the lesson for all your transactional lawyers out there. Don’t close if your don’t have possession. 

Respectfully submitted,

Michelle Itkowitz