Top Five: Post-Closing Problems

Opinion | January 29, 2020


One of the stranger experiences of my career took place in the winter of 2010.

I listed a property for sale on behalf of clients who were downsizing, and we sold in two weeks for just under list.

That alone could be defined as a “strange experience.”  A freehold home not selling in competition?  Not selling over list?

Times were different back then, and this was a very unique home.

But the strange experience I’m referring to for the purpose of today’s blog happened just before this sale was scheduled to close.

The buyers visited the property for a pre-closing inspection and found that their soon-to-be new home was soaking wet.  No, not from the rain, sleet, and snow, but rather from pipes inside the house that had burst, and filled the home with water.

The buyer agent notified me immediately, and I knew we had an issue on our hands.  Closing was only a few days away, and there was no way that we’d figure out what to do with this catastrophe in time.

When I spoke to the seller, I was quite caught off guard, not only because he knew how this happened, but because he didn’t accept any fault.

“I turned all the heat off in the house,” he said.  “We’re out of the house, and on the other side of the country,” he explained.

This was a particularly harsh winter, and at this time, we were in the midst of a wicked cold snap.  Temperatures overnight were routinely approaching -20 degrees.

“Why did you turn off the heat?” I asked him.

“To save money!” he said, as though it were obvious.  “We’re not living there, so why waste money on heat?” he asked.

These folks had been living in the house for thirty years.  They knew their way around home ownership, or so I thought.

Turning off all the heat in a century-old home with some original windows means that the inside of that house was probably only marginally-warmer than it was outside.  You don’t have to be a plumbing expert to know that if copper pipes, containing running water, are left to freeze in -10 or -15 degree temperature, they’re going to burst.

And that’s what happened.

My clients, who, I suppose, were looking to save $200 on the sale of their $1.2M house, turned off all the heat in the home, for a month, and the pipes burst.

“You never told me I had to keep the heat on,” my client told me as we spoke on the phone.

Insurance paid for the work that needed to be done, but my client had a $500 deductible that he was pissed about.

I was already confused about how my client could think it prudent to turn the heat off in an old home, during a cold snap, for a month, but I was even more confused as to why he was upset that he had to pay $500 in order to fix $25,000 worth of damage to his $1.2M house, only days before closing.

Live and learn.

And learn, I did.

You can’t teach common sense, and while that sounds snarky, you have to admit that it’s true.  Especially in this case.

So now when I have clients that are moving out of their home in the dead of winter, and leaving a few days or weeks between that move date and closing, I will instruct them, “Make sure you keep the heat on so the pipes don’t burst.”  As you can imagine, I get some pretty glib looks, or sarcastic emails in return.

Over the last year, I have experienced more “problems” after closing properties than ever before.

I have come to realize that, as was the case of the burst-pipes in 2010, I should try to get out ahead of issues before they arise.

Most issues that arise after closing are minor, but that’s what makes them so frustrating.  They “should” have been addressed.

Nevertheless, I have started explaining to my clients as part of the pre-closing instructions, “Something will go wrong upon closing.  Just be prepared.”  This isn’t pessimism, nor is it being defeatist, but rather it’s being realistic.  Something will undoubtedly bother you when you close.  Whether it’s the broken barbecue the sellers failed to dispose of and left behind, or the dirty toilet in the main floor powder room – a situation will present itself.

I simply chalk this up to “people being people.”

Maybe you are a closing-day darling!  You have the property professionally cleaned, you leave a bottle of wine and a hand-written note behind, and you move heaven and earth to ensure the property you sold is in perfect shape.  But not everybody is like this.

As a buyer, and as a buyer agent, try as you might to inspect the property the day before closing and ensure all is well, there are just some things you can’t guard against.

Here are my top-five post-closing issues for 2020:

5) Sellers Not Prepared For Closing

Imagine getting the keys to your new house from your lawyer, and deciding to head over to the house for a little look.  Then upon walking into your new home, you see the seller – sitting on his couch, watching TV.

Impossible, right?

Except this has happened!

We had to get both sets of lawyers involved, and the sellers had to sign an indemnification agreement that was slapped together on the spot.  But who’s fault was this?  The seller’s lawyer didn’t know his clients were still in the property since they had already signed the papers, and handed over the keys.  But he also hadn’t explained the obvious: that upon “closing,” they had to move out!  Just like in the situation where my clients turned off the heat in their house, was this lawyer supposed to tell the sellers that they needed to leave the house that they sold?

But more often than not, the idea of the sellers not being “ready” involves them deciding, for whatever reason, that they have some sort of right to return to the property at a later date.

Last year, buyers of mine closed on a property on Friday, and on Saturday afternoon, were busy painting the main floor of their new home.  Then they heard the sound of a key in the front door, and the door opened, to reveal the previous owner – now officially trespassing.  He said, “Oh, I’m sorry, I didn’t think you’d be here already!  I just came by to grab a few things I left in the master bedroom closet.”

Make no mistake, this is not okay!  But as I’ve learned over the years in this business: just because something is wrong, doesn’t mean a person won’t do it.

My clients told the previous seller that he couldn’t enter their home, and the seller threw a hissy-fit.

Imagine that.

Upset because the new owners were taking him to task, for being in the wrong.

I once had clients take possession of their new home and the seller had left his “summer car” in the garage.  They didn’t notice it for three days, and upon discovering it, they notified their lawyer.  The previous owner came to pick it up two days later, and told the sellers, “I didn’t have anywhere else to store it.”

You can’t make this stuff up.

This is people.

And as is the case with most items on this list, you can’t really get out ahead of these issues, because you can’t imagine any of them ever transpiring!

4) Junk Left Behind

As I alluded to above, it’s becoming increasingly rare to find a truly “empty” house upon closing.

Once in a while, items are left behind that owners, god bless them, thought the new buyers might use!  Like a couple of cases of extra hardwood flooring, or the paint cans to match the main floor living and dining rooms.  But let’s be honest, 99% of the time that items are left behind, it’s because the sellers are lazy, and ultimately just decide, “It’s not like the buyers can do anything about it once the deal has closed!”

Last month, tenants moved out of a property belonging to one of my clients, and they left behind a mound of items.  Cleaning supplies, kitchen items, flower pots, hangers, small pieces of furniture, and on, and on, and on.  These tenants were not coming back, FYI.  They left this stuff behind, why?  Well, simply because they could.

This happens all the time in Toronto, and it’s frustrating.

You can inspect the property the day before closing and tell your lawyer that there were a handful of items left behind, but can you acutally ensure that you’re getting the house in broom-swept condition?  Does the clause in your APS mean anything?

The problem is, these issues are too small to take up in court down the line, and some sellers abuse that.

We’ve gone from, “Congratulations, welcome home,” to simply “Screw you and your new house.”

More often than not, something is left behind at a house or condo upon closing, and honestly, even one item is too many.  It’s just too easy not to leave things behind.  Especially if you live in a condo.  Just take those last few items and chuck them down the garbage chute.

But that would be too easy, and too much to ask, right?

As is the case with most things on this lists, don’t call your lawyer and instruct them to draft a letter to the other lawyer, demanding immediate removal of said items.  Legally-speaking, you’re in the right.  But nothing is going to come of this, I assure you.  Just get rid of the crap, and move on with your life.

3) Undisclosed Rental Items

It is the job of the seller, and the listing agent, to disclose if there are any items in being sold with the home that are rented.

And there is a section on the standard Agreement of Purchase & Sale that specifies which items, if any, are rentals.

Barring the inclusion of a rental item in this section, then all items and equipment are deemed to be free and clear of any encumbrances.

So what happens when you take possession of your new home, and find out that the hot water tank is rented?  Or the furnace?  Or the air conditioner?

Well, that’s where the issue arises.

As the new owner, you aren’t on the hook for it.  The seller is.

But can you get the seller to buy out the contract?  What if they moved to the moon?

And if you tell Reliance or Enercare that you don’t want to assume the contract, what if they say, “Too bad?”

One of the first questions I ask my sellers when we sit down to go over the particulars of the house is whether or not there are any rental items.  Then I ask them to double-check, and call their providers if they’re not sure.  I’ll get a copy of the bill if I can.

But as a buyer agent, I’m at a loss.

I have a situation right now, as in literally right now – stepping aside from writing this blog to read an email from my client, where we noted in the APS that the hot water tank was a rental item, only to find upon closing that the furnace is as well.

What more are we to do?

I always ask myself, “What could I have done differently?”  I suppose I could have called Enercare, Enbridge, Reliance Home Comfort, Direct Energy, Toronto Hydro, and a dozen other companies, and asked each of them, “Can you tell me which items are rented at 123 Smith Street?”

But I tried that once.  And the rep on the phone refused to answer, since I wasn’t the owner of the home.

2) Missing Fixtures

Ah yes, the age-old debate about “chattels vs. fixtures.”

So simple, and yet so many buyers and sellers fail to understand what must be included in the Agreement, and what must be excluded.

There is a section on the Agreement that says “chattels included.”  That’s because all chattels are deemed to be “excluded” unless specifically included.

There is a section on the Agreement that says “fixtures excluded.”  That’s because all fixtures are deemed to be “included” unless specifically excluded.

Easy enough?

The fridge is a chattel.  It is excluded unless it is specifically included in the Agreement.

A curtain rod is a fixture.  It is screwed to the wall.  It is affixed.  It is attached.  It meets the rudimentary test of “nailed, screwed, or glued,” which rhymes, and is therefore easy to remember.  This curtain rod is included unless it is specifically excluded in the Agreement.

And yet every time I have a deal close, there’s something that was removed, that should have been left behind.

I had clients in December email to ask about the missing Nest Thermostat.

Really?  Who the hell pries the thermostat off the wall?  How in the world can a seller think this is something they can take from the house, unless it is specifically excluded in the Agreement?

And if you have a baby, and you installed baby gates, even if the buyers have no baby, guess what?  Those baby gates are staying with the house, unless you specifically exclude them.

Almost every time a deal closes on behalf of a  buyer, I get an email from my clients asking about a particular item that was removed.  Sometimes it’s something simple like a shelf or a key-rack, which is cheap, and can be replaced.  Should it be replaced?  No, it should have been left behind.  But if you’re buying for $1.5M and somebody takes a $100 shelf, just let it go.  Don’t stand on your “principles” because you’re going to end up twice as mad as you were in the first place.

1) Mail

Did you think that #1 on this list was going to be something mind-altering?

Or have you come to know that the simplest answer can also be the most obvious?

Time and time again, I get emails from clients asking, “What do we do with the sellers’ mail?”  And all the while I have no idea why the sellers didn’t pay Canada Post for “mail forwarding.”

I moved in August of 2018, and even though we’re approaching 1 1/2 years later, I still pay for mail-forwarding.

Why?

Because it’s $85 for a full year.

Maybe I’m a spend-thrift, although my obsession with buying bulk chicken at Costco would suggest otherwise.  But in any event, if you don’t want to spend $85 to have all of your mail forwarded to your new address, then I honestly think there’s something wrong with you.  You’d rather spend $85 on a bottle of wine at a restaurant, that costs $28.95 at the LCBO, for which you can’t tell the difference from Yellow Tail Shiraz.

Do you know how many times I get an email from a listing agent who says, “Hey David!  My clients want to go by the house and pick up their mail on Friday at 4:30pm.  Can you ask the new owners to bundle it and leave it on the front porch for them?”

No.  No way.

It’s not my job, nor is it the job of my sellers, to facilitate this.

Is it a nice thing to do?  Is it easy?  Yes and Yes.

But it’s entirely unnecessary, and I don’t believe in going out of my way for a person to make up for their laziness and ineptitude.

This might be the same seller who left forty-one rusted paint cans behind in the garage, and didn’t disclose that her hot water tank was a rental! 🙂

Great timing here too: I received an email today from a listing agent of a house that my clients purchased……….wait for it…………one year ago, asking if they can check their mail for his clients’ Ontario Health Card.

One full year?  Are you serious?

“Do unto others, as you would have them do to you,” I get that.

But after a certain amount of time, just mark “RTS” on the envelope, and send it back.

Well, I wish today’s blog was a bit more positive, but there’s humour in all of this, if you look closely.

People are nuts!

That’s funny, right?

These experiences didn’t happen to you.

You weren’t the one who left the used sex toys in a cardboard box in the laundry closet either, so have a laugh!  You weren’t the one that found them!

Never a dull moment, folks…

Back To Top

Post a Comment

Your email address will not be published.

20 Comments

  1. Pingback: Top Five: Post-Closing Problems | Real Estate News Group
  2. Francesca

    at 7:09 am

    We have new neighbours on our street, who when they moved in last year, found many items left behind throughout the house. The worst was that the fridge was still full of items, as was the kitchen pantry. The sellers were a divorced couple where the husband had been living alone in the house for a year before selling. I guess he couldn’t be bothered to remove everything upon moving out. The new neighbours were so upset they had to get their lawyers involved. The seller refused to come back so they reached an agreement: he gave them $1000 to call Got Junk to remove everything.
    When we moved into our house 11 years ago, the sellers failed to fix a couple of cracks in our basement foundation which was part of the agreement of sale. We got the keys of the house a few days early luckily to get the carpets cleaned and to paint and our lawyer was on the phone with them saying we wouldn’t close unless the problem was fixed. This was literally the only issue found during our home inspection and yet they had decided it was too minor to address and that we wouldn’t notice it upon closing. Thankfully they got it fixed after and we were able to close in time but it was extremely stressful as we were closing on our previous house and were worried we would have nowhere to live!

  3. Verbal Kint

    at 8:46 am

    Local agent examines sex toys to ascertain new/used status — claims he always goes the extra inch to service the client.

      1. Jenn

        at 9:24 am

        David this is stupid, delete these. Don’t give these guys a forum for this.

  4. Izzy Bedibida

    at 9:36 am

    My late father told the story that the previous owners tried to get him to pay for the heating oil left in the “oil tank” of a gas heated home. Dad nearly walked away from the deal because of it.
    Subsequently, the owners took everything including all the light bulbs, some fixtures and every fuse in the house.

  5. Marina

    at 10:40 am

    I literally don’t know a single person who bought a previously lived in property who didn’t find random crap, most of it just mind-alteringly weird:

    – a box of empty toilet paper tubes in the closet. There were like 50 of them, stored in a nice box from homesense or wherever

    – a storage rack in the garage (nice!) which held two leaf bags (nice), a small garden gnome (?) and a moldy fancy ladies hat (???)

    – 15 waist-high stacks of ladies magazines in the basement, sorted by title and date! My friend donated them to her manicurist, hair stylist, dentist and doctor. I took a few Marie Clares too – they were in perfect condition!

    – a box in the front closet holding 5 mens shoes, all different styles AND sizes! The previous owner was a single lady. You can imagine the speculations this kicked off!

    And last but not least, a colleague walked into her first condo to find it spotless. The seller had left his ikea side table, with a Welcome note on it, a box containing all manner of documentation on appliances and stuff, a bottle of sparkling wine, and a box of 5-days old donuts, hard as rocks 🙂 It was really funny – clearly it was very thoughtful, just not thought through. It was winter, so not bugs, thank God!

    1. Derek

      at 11:17 am

      Friends took possession of a detached to the pleasant surprise of getting all brand new appliances (fridge/stove/dishwasher); the sellers had won the lottery and surprised them.

    2. Professional Shanker

      at 1:44 pm

      Drawer full of nail clippings…..stored for what it appeared to be about a decade, it was a treat (barf sound)!

  6. Logan

    at 12:49 pm

    We purchased a resale condo this past October, and speculated the owners were going to leave some large items behind so we proactively tried to prepare for the situation.

    Regarding “nailed, screwed, or glued,”. How does this apply to taller furniture items that have been affixed to the wall to prevent tipping? We asked our agent and he wasn’t clear on the answer. There were bunkbeds, armoires, shelving, etc that all had anti-tipping measures installed; are they included in “nailed, screwed, or glued”?

    The issue was, we didn’t want any of these items left behind, as we had no use for them, and also didn’t want to go through the hassle of dumping or selling them. As per the sales contract, anything that is “nailed, screwed, or glued” stays behind.

    We had our agent contact the sellers’ agent a few weeks prior to closing and inquired about a specific list of items we suspected might be *left behind*. The sellers replied that they weren’t interested in keeping any of these items and offered to sell them to us. We thanked them and replied no.

    On closing, as suspected, all of the items except for the bunk beds, were left behind. Because we had had explicit conversation regarding these items, we instructed the sellers to remove those that we absolutely had zero use for, and they complied within 1-2 days.

    For the remaining items, we found a purpose for them, but just weren’t interested in paying for them.

    Finally, I will add that one of the sellers is a famous agent in the area.

  7. Craijiji

    at 1:21 pm

    Point number 2: I disagree. Depending on the amount of junk there, do not just get rid of it on your own and pretend it didn’t happen. My sister and brother in law bought a place that the previous owners left in a pretty rough state. Garbage everywhere, furniture, a broken riding lawnmover…you get the idea. They contacted their lawyer and they managed to get $5,000 back from the seller.

    If you ask for nothing, you’ll get nothing. If you ask for something, you may get nothing, but you may get something.

  8. Steve

    at 2:11 pm

    The previous occupant of my current abode left their reel lawnmower, which I was actually pretty happy with coming from an apartment building.

    1. Steve

      at 2:35 pm

      Oh less happily, they left me with a rental water heater. The reason this pissed me off is it was not mentioned in the listing and when I directly asked the listing agent said they “weren’t sure”. Sure enough when it came time to look at the purchase agreement there it was.

  9. Geoff

    at 3:42 pm

    I have a story – when we moved in, the previous owners mentioned that they’d left an extra green bin in the garage for us. Cool I thought. What I didn’t realize was there was bags of uncooked chicken in it. Cue weeks later – garage is swarming with flies, porch too. Can’t figure it out. Go to green bin in corner. Open. Cue exorcist scene.

    1. Izzy Bedibida

      at 3:54 pm

      Ex-wife bought a house before we separated, and house was supposedly “cleaned” before closing. She loved what she thought were slate grey floor tiles, only to have them turn to beige tiles after she started to clean them. She panicked because she thought she accidentally bleached a section she was cleaning.

  10. Patty

    at 6:47 pm

    Turning off the heat is not uncommon. My son and his wife entered their new townhouse in Markham last November to find the heat and electricity had been off for a month. Luckily there was no damage but move in was delayed by several days.

  11. Max

    at 11:04 pm

    Nice topic David. I’m sure there are many stories out there. For me, turned out the water filtration and softener were rentals that were not listed (only hwt was listed). We went through our lawyer and got them to pay it off ($7k). Must’ve fallen for those door to door schemes. Year and half in, they still asked for mail. We just told them to f off and set up with Canada Post.

  12. Pingback: Best 5: Put up-Ultimate Issues | DailyBiz
Back To Comments