Expert: Sue Bernstein - 6/19/2006

Question
We are first time home buyers and bought a townhouse in LA which closed this past Tuesday. Closing occured that morning and we were given the keys at 2pm. Now, the prior Friday, we had done our final walk through. All the seller's furniture was still there, all his clothes, everything. He had moved out of the country and according to his agent, a friend was going to collect his things. All our contracts and contingencies stated that the house had to be cleared out and broom clean. OUr agent called the other agent and he told her that the stuff would be out that night (Friday). She did not advise us to wait but instead told us to sign the papers removing all our rights (as far as I know)to keep up these contingencies. Our agent then allowed us to bring a carpet guy in on Monday so he could measure for new carpeting- and again, everything was in the exact same place as it had been at the final walk through (and since we put an offer in, for that matter, months ago). Our agent told us she would call the seller's agent and then informed us later that his friend would be coming that night (Monday). But, we walked in Tuesday after we closed and everything was still there.

At this point, we had not been able to reach our agent all day. We had to move all of this guy's furniture, clothing, and assorted stuff, a job that took about 5 hours and 3 people.

We finally reached our agent at 6:30pm Tuesday but by then escrow had left for the day and by the time she reached them in the morning, it was too late- all funds were transfered and we could not hold any penalties for breach of our agreement. We were very upset but knew that beside taking it to small claims court, we could not do much.

To make matters worse, when we were cleaning this guy's stuff out after we closed on Tuesday, at about 9:30pm, someone claiming to be the seller's friend knocks on the door and says he is there to "collect the couch". Now, the couch was the only nice piece of furniture left behind, and we liked it, and spent several hours moving it to  the side of the room for the carpet installers- so we told him sorry, but as we had closed 7 hours prior, we now owned the couch as far as we knew and he'd have to take it up with the seller's agent.

We spoke to the seller's agent after this happened. The agent was very polite and nice and said we were absolutely right and that he'd told this "friend" of the seller 3 weeks ago he had to collect the couch by the previous Friday, before the final walk through.

A few days later, we got a call from this "friend" arguing about the couch again. My husband said he  couldn't argue w/him and he should talk to the seller's agent (Brian).

Last night, around 7pm, both my husband and I got horribly angry, abusive messages on our cell phones from Brian, the agent, saying we had to give this guy the couch, it did not belong to us. My husband called him back and during this conversation Brian threatened us that he "still had keys to the place".  Luckily we'd already changed the locks.

So- after this long-winded story... we feel so upset, betrayed, and angry. I feel our agent was negligent and should have been dealing with this situation so it never got this far; more importantly, we are shocked at the behavior of Brian, the seller's agent (he had been a nightmare throughout the process, holding us up at every turn b/c he had received a higher backup offer after he'd accepted ours). He had no right to call and swear and yell at me or my husband- we feel we have been the victims in this. I appreciate the fact that this "friend" wants the couch that he apparently bought from our seller, but that is between him and the seller, not our problem, right?

So I guess my question is- what should we do? Legally, who is right here? And do we have any recourse against these agents who I feel are acting very unprofessionally? It just sucks as we are first time buyers and this process was scary enough already before we dealt with threats and all this stress...


Thanks so much!

Answer
Dear Suzie,

It is unfortunate that you are having these kinds of problems on your first transaction.  I once had a similar experience representing a buyer where the seller did not remove his belongings as promised.  There is little your agent can do other than complain to the other agent.  I don't believe the items automatically become yours just because escrow closed.  I would have your agent check with his/her company legal council to determine the correct ownership and how to proceed.  You can put these items in storage until everything is decided and then go after seller to pay for storage fees but I wouldn't get rid of anything until you know for sure you have the legal right to do so.  You might want to communicate to the seller (through your agent) that if he wants the couch he must remove all the other items at the same time or sign a release of the items so you can dispose of them and move on.

I hope this helps and good luck.

Sue Bernstein
www.SueBernstein.com