Transfer to Occur after Closing
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Transfer to occur after closing.
Post-Closing Buyer Possession Agreement
The Seller, _________ (“Seller”), and the Buyer, _________ (“Buyer”), have signed a Real Estate Sales Agreement dated _________ (the “Contract”) pertaining to the real estate commonly known as _________, Illinois, and any appliances, equipment and fixtures described therein (collectively the “Property”). For good and sufficient consideration, the parties agree that Seller shall deliver possession of the Property to Buyer after the closing date which is described in the Contract (the “Closing Date”), on the following terms and conditions (the “Possession Agreement”):
1. Possession Date. Seller shall deliver possession of the Property to Buyer not later than _________ P.M. on _________[date] (the “Possession Date”).
2. License for Occupancy. Buyer grants to Seller a license to use, occupy and possess the Property for a period of time commencing on the Closing Date and ending on the Possession Date. Seller shall not use or allow the Property to be used for any purpose other than as a single family residence, occupied only by Seller and Seller’s immediate family, and shall not allow the Property to be used for any illegal purpose. This Possession Agreement shall not be construed as creating the relationship of landlord and tenant.
3. License Fee and Utility Charges.
A. At closing, Seller shall pay to Buyer the sum of $_____ representing an amount equal to $_____ per day for each day from the Closing Date to and including the Possession Date.
B. All utility charges (electricity, gas, telephone, water, sewer, trash disposal and cable television) during the term of this Possession Agreement shall continue to be the responsibility of Seller until the date Seller vacates the Property.
C. Buyer is responsible for real estate taxes and any association assessments accruing on and after the Closing Date.
4. Escrow Deposit. At closing, Seller shall deposit with _________ (the “Escrowee”) the sum of _________ Dollars (the “Escrow Deposit”), as security for Seller’s obligations under this Possession Agreement. Any amounts owing to Buyer in connection with this Possession Agreement shall be deducted from the Escrow Deposit and shall be paid to Buyer. Any amount remaining with Escrowee after such payments of the sums due to Buyer shall be paid to Seller upon the delivery by Seller to Buyer of possession of the Property, as set forth in paragraph 10 below. All disbursements of money from the Escrow Deposit shall be made at the joint written direction of Seller and Buyer. Seller shall pay all fees in establishing and maintaining the escrow. The amount of the Escrow Deposit shall not be construed as a limit on the amount Buyer is entitled to collect from Seller under this Possession Agreement. Prior to disbursement of the Escrow Deposit, Buyer shall have the right to inspect the Property to confirm that Seller has removed all furniture and items from the Property and that the Property is in the condition required under the provisions of this Possession Agreement.
5. Seller’s Insurance and Risk of Loss to Seller’s Contents. At closing, Seller shall deliver to Buyer an insurance policy insuring Seller for the risks described in this paragraph 5, naming Buyer as an additional insured on the liability coverages, together with a receipt showing the premium on this insurance policy to be paid in full for a period not less than _________ days after the closing:
A. Insuring against liability for bodily injury, including death, and property damage with single limits of not less than $300,000 for any one person injured or property damage per occurrence; and
B. Insuring Seller’s personal property, furnishings and other items in the Property (the “Contents”) on a replacement cost basis. In the event of any loss, theft or damage to Seller’s Contents, Seller shall make no claim against Buyer and shall look solely to such insurance for reimbursement for such loss.
6. Risk of Loss; Condition of Property on the Possession Date.
A. As of the Closing Date, the risk of loss to the Property on account of fire or other casualty shall pass to Buyer, unless the loss is the result of misuse, negligent or intentional act or omission of Seller, a member of Seller’s family or other person who occupies the Property with Seller or who enters the Property with Seller’s consent (“Seller Misuse”), in which event the risk of loss shall be on Seller, who shall be responsible for the cost of all repairs or replacements which result from Seller Misuse. If the Property shall be rendered untenantable by fire or other casualty, then (i) Seller’s right to use and occupy the Property shall terminate and Seller shall vacate the Property as soon as possible and (ii) on a per diem basis, any license fee paid for the period the Property is untenable shall be refunded to Seller.
B. As of the Closing Date, the risk that a fixture, appliance or item of equipment shall fail to operate shall pass to Buyer, unless the failure to operate is the result of Seller Misuse, in which event the risk of loss shall be on Seller, who shall make necessary repairs or replacements. Seller shall give Buyer immediate telephone and written notice of each such failure to operate. Buyer shall have the right, but not the obligation, to make such repairs and replacements, and Seller shall allow Buyer and his contractors to enter the Property to perform such work at reasonable times upon reasonable prior notice.
C. During the term of this Possession Agreement, Seller, at Seller’s sole cost and expense, shall maintain the Property, including the fixtures, appliances and equipment contained therein, in the same condition as on the Closing Date. Seller’s obligation under this paragraph 6.C. includes, but is not limited to, maintaining the lawn, trees and other landscape, snow, ice and trash removal, heating the property to prevent the water pipes from freezing and other damage, securing the Property when away and taking reasonable steps to protect walls, doors and carpeting when moving from the Property.
D. Seller shall allow Buyer access to the Property, from time to time, upon reasonable telephone notice (except in the case of emergency), for the purposes of examining the same, making measurements, obtaining estimates from contractors and making any necessary repairs and replacements.
E. Seller shall arrange with Buyer, by notice to Buyer given not less than forty-eight (48) hours in advance, for an inspection of the Property to be held at or about the time that Seller vacates the Property in order for Buyer to verify that the Property, including the fixtures, appliances and equipment contained therein, are in the same condition as existed on the Closing Date. If Buyer reasonably determines that the Property has been damaged or otherwise is not in the same condition as existed on the Closing Date, Buyer shall deliver written notice of same to Seller within one (1) day following the Possession Date. On the Possession Date, Seller shall vacate the Property and shall leave the Property in the same condition as existed on the Closing Date and in broom clean condition. Any expense for repair, reconditioning and replacements necessitated by Seller Misuse of the Property during the period from the Closing Date through the Possession Date, shall be at the sole expense of Seller.
7. Seller’s Failure To Deliver Possession. If Seller fails to deliver possession to Buyer by the Possession Date, Seller agrees to pay to Buyer the following costs and expenses which shall be collectively referred to hereafter as “Buyer’s Delay Damages”:
(i) _________ dollars per day from the Possession Date to and including the date on which possession is delivered to Buyer, and
(ii) The following additional out-of-pocket expenses, if any, incurred by Buyer on account of the delay in delivering possession:
(a) The reasonable cost of lodging and meals;
(b) The cost imposed by Buyer’s moving company for rescheduling the move and holding the Buyer’s furniture and furnishings to complete the move;
(c) The cost of placing Buyer’s furniture and furnishings into and removing them from storage, and moving the items into the Property;
(d) Other similar costs related to Buyer’s inability to occupy and use the Property on the Possession Date.
[Or, in the alternative, the parties may wish to provide a larger per diem use and occupancy charge for the period after the Possession Date as a liquidated damages amount, such as the following:
7. Seller’s Failure To Deliver Possession. If Seller fails to deliver possession to Buyer by Possession Date, Seller agrees to pay to Buyer the sum of _________ ($_____) Dollars (“Liquidated Damages Payment”) for each day Seller remains in possession after the Possession Date to and including the day upon which Seller delivers possession to Buyer. These Liquidated Damage Payments, if any, shall be deemed to be payments for use and occupancy and as liquidated damages, and such payments shall be Buyer’s exclusive damages remedy for Seller’s delay in delivering possession, together with the costs and expenses provided in paragraph 9.]
8. Alterations. Except as required in paragraph 6, Seller shall make no repairs, alterations or modifications or perform any decorating in and to the Property without prior written permission of Buyer. Seller shall pay immediately for all work, labor and material done upon or provided to the Property and shall not permit any mechanic’s liens to attach against the Property. If any mechanic’s lien shall attach to the Property for work done by Seller or its agents, Buyer shall have the right to discharge such lien from the Escrow Deposit.
9. Possession Suit. If Seller fails to vacate the Property and deliver the keys to Buyer or the listing broker for delivery to Buyer on or before Possession Date, Buyer, at its option, shall have the right, upon the delivery of written notice to Seller, to file a forcible entry and detainer law suit to recover possession of the Property. Seller consents and submits to the jurisdiction of the Circuit Court of the County in which the Property is located. Seller shall pay to Buyer all reasonable costs and expenses of Buyer’s recovering possession of the Property, including, but not limited to, court costs, attorneys’ fees and expenses, sheriff’s charges for eviction and delivering possession to Buyer and Buyer’s Delay Damages.
10. Delivery of Possession. Until Seller has vacated the Property and delivered the keys to Buyer or the listing broker with instructions to deliver the keys to Buyer, Seller shall be deemed to be in possession of the Property for all purposes under this Possession Agreement. The failure, refusal or delay of one or both parties to sign a joint direction to Escrowee to disburse the Escrow Deposit shall not delay delivery of the keys to the Property to Buyer and Buyer’s taking possession of the Property.
11. Seller’s Indemnity of Buyer. Seller agrees to defend, indemnify and hold Buyer harmless from and against any and all damages, losses, claims, demands, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Buyer arising out of or in connection with:
(i) Seller Misuse, including payment of any deductible under any insurance policies of Buyer,
(ii) claims for bodily injury, death, and property damage, arising out of or in connection with Seller’s possession, use or occupancy of the Property,
(iii) any mechanic’s claim for lien, or other charge attaching to the Property arising from Seller’s possession, use and occupancy of the Property, and
(iv) Buyer’s enforcement of the terms and conditions of this Possession Agreement.
12. Attorneys’ Fees and Protection of Escrow Funds. If a suit to construe or enforce the provisions of this Possession Agreement is filed, (i) the prevailing party shall be entitled to recover from the other party the prevailing party’s court costs and reasonable attorneys’ fees and other costs and expenses incurred in the enforcement of this Possession Agreement, suit, trials, appeals, rehearings, (ii) the other party to pay the attorney’s fees and other costs and expenses incurred by the Escrowee pursuant to the provisions of this Possession Agreement, and (iii) the court in which the suit is pending shall have authority to enter judgment for such sums. The party at fault shall restore to the Escrow Deposit any amount incurred by the Escrowee acting under and pursuant to the provisions of this Possession Agreement, including, but not limited to, cost of filing, intervening or participating in any law suit relating the Escrow Deposit or Escrowee’s obligations under this Possession Agreement.
13. Disposition of Escrow Deposit in Event of a Claim of Default. If either party claims that the other party has defaulted under this Possession Agreement, the Escrowee shall continue to hold the Escrow Deposit until there is an Event of Distribution (as defined in paragraph 13.A. below), or the Escrowee files an interpleader suit as authorized in paragraph 13.B. below and deposits the funds with the Clerk of the Court.
A. Events of Distribution. An Event of Distribution shall be the first to occur of (i) a joint written direction from the parties directing the Escrowee regarding the disposition of the Escrow Deposit or (ii) a court order, which may be either an interpleader order or a judgment order which adjudicates or declares the rights and obligation of Seller and Buyer in the Escrow Deposit.
B. Interpleader Suit. The Escrowee shall have the right to file an interpleader suit and shall be reimbursed from the Escrow Deposit and by the parties for all reasonable attorney’s fees, court costs and similar reasonable expenses relating to or in connection with initiating the suit and obtaining an Interpleader Order.
C. Conflict as to Escrow Deposit. The rights of the Escrowee under and pursuant to this Possession Agreement shall prevail over any claim of Seller or Buyer in these funds.
14. Miscellaneous. This Possession Agreement shall survive the closing and shall not merge in the deed. This Possession Agreement shall be executed by both Seller, Buyer and Escrowee and when so executed shall be in full force and effect.
Dated: _________
Seller: _________
Buyer: _________
In consideration of the indemnity protections and other provisions of the Possession Agreement relating to the Escrow Deposit and Escrowee, the undersigned as Escrowee hereby agrees to hold, disburse and deal with the Escrow Deposit in the manner described in the Possession Agreement.
Dated: _________
Escrowee: _________