Fillable Printable Form of Post-Closing Possession Agreement

Form of Post-Closing Possession Agreement

CAUTION: THIS AGREEMENT MAY CREATE IMPORTANT CHANGES IN THE SELLER-PURCHASER CONTRACT

RELATIONSHIP. IT IS RECOMMENDED THAT ANY PERSON NAMED IN THIS AGREEMENT CONSULTS HIS OR

HER ATTORNEY BEFORE SIGNING.

POST-CLOSING POSSESSION AGREEMENT

THIS AGREEMENT made this _______ day of ____________, 20____ by and

between ___________________________, hereinafter referred to as “Purchaser,” and

_____________________________, hereinafter referred to as “Seller.”

W I T N E S S E T H :

WHEREAS, the parties have heretofore executed a Contract dated _________________

for the purchase and sale of certain property commonly known as ___________________

______________________(herein “Premises”), hereinafter referred to as “Contract”; and

WHEREAS, circumstances have arisen subsequent to said contract which require or

make it desirable for the parties to alter the dates therein specified for closing and

delivery of possession, so that the date for delivery of possession will succeed the date for

closing.

NOW THEREFORE, provided the mortgage commitment is granted and its terms and

conditions accepted, it is hereby agreed as follows:

1) The closing of the sale shall occur on ______________________ or on any other

date prior to the date stated in said prior contract which the Purchaser shall

designate by __________ days, written notice to the Seller, provided (a) said

notice shall not accelerate without Seller’s consent any time limited in the

Contract for the performance by the Seller of any other condition precedent by the

Seller to be performed, and (b) Purchaser has tendered or tenders, at the time of

such accelerated closing date, due performance of all Purchaser’s obligations

under the Contract, as herein modified.

2) The seller shall have the option of remaining in possession subsequent to the

closing of title for all or any part of a period expiring the _____ day of

___________, 20_____.

3) It is agreed that the relationship between the Purchaser and Seller during such

period of deferred possession shall be subject to termination at the lapse of this

agreement by summary proceedings on _____ days’ written notice pursuant to

Section 713(8) of the Real Property Actions and Proceedings Law.

4) The rent due pursuant to this agreement shall be at the rate of $_____ per day for

each day of such deferred possession.

5) (a) To secure the payment of the rent, the Purchaser may withhold from the

payment due to the Seller at the closing of title (1) the sum of $ ______ , or (2) a

sum determined by multiplying the maximum allowable days of the hold-over

period by the above-stated per diem rental rate. Such withholding shall constitute

advance payment of rent, or so much thereof as may thereafter accrue.

(b) In addition to said advance rent payment, Purchaser may withhold the

further sum of $ __________ as security against damages arising out of (1) the

cost and expense of enforcing timely removal; and/or (2) repair of damage, if any,

caused by Seller and occurring subsequent to closing of title; and/or (3) to apply

to rental at the increased rate of $ __________ per day, which shall be the accrual

of rental subsequent to the last date limited herein for holdover.

6) The attorney for the Purchaser/Seller, upon signing this agreement, shall act as

escrow agent in regard to such withheld sums, and shall have no duty or

obligation to either of the parties hereto, than with respect to any sums hold

against pursuant hereto, to hold same in his or her attorney trust account without

obligation for the payment of interest, and with respect to any sums held against

rent, to: (a) pay accrued rent to the Purchaser at the time of removal by the Seller;

(b) pay any surplus to the Seller after such payment of accrued rent to the

Purchaser, provided, however, that the escrow holder shall release no funds until

the key to the premises has been delivered to such escrow holder or to the

Purchaser and that the key delivery date shall be presumptively determinative of

the last day of the holdover period; and (c) with respect to any sums held as

security against either expenses of enforced removal, physical damage to the

subject premises or increased rental, to hold same until the sooner of (i) receipt of

written authorization to release by Purchaser or Purchaser’s attorney, or (ii) the

lapse of ____ days from the date of service of written notice of intention to

release escrow by the holder thereof without a responsive written objection, or

(iii) the lapse of ____ days from the date of service of written notice of demand

for release of the escrow without a responsive written objection.

All adjustments including but not limited to purchaser's mortgage interest and

homeowner's insurance provided for in the Agreement shall be made as of the date

of possession.

Upon Delivery of possession of the Premises,

(i) same shall be vacant and broom clean

(ii) the plumbing, heating and electrical systems included in the sale

shall be in working order;

(iii) the roof and basement shall be free of leaks; and

(iv) the premises shall be free of violations of law and municipal

ordinances.

Purchaser shall have the right to inspect the premises prior to delivery of

possession.

Possession of the premises shall be that of a licensee.

Either form of notice shall be served by the person issuing it simultaneously to

each of the other parties and their respective attorney(s)

Failure of response of written objection, within the time limits, shall constitute a

waiver of objection.

Service shall be deemed made when made personally upon the person to be

noticed, or when mailed registered or certified to the address, if any, listed as the

post-closing address of the parties at paragraph _____, or, if none is listed, to the

attorney for such party, or, if none, to the address for such party recited in the

original Contract.

7) Objection to release of escrow based on either rent or damage claims shall be

specific, detailed, itemized and as to physical damage claims, cost estimated as to

each item specified. The excess, if any, over the aggregate of the itemized

amounts shall be promptly remitted to the Seller by the escrow holder.

As to claims related to cost of enforced removal or unspecified (due to lack of

access to inspect) physical damage, the entire escrow shall be retained until such

removal costs are finally determined or such repair and/or replacement of physical

damage claims finally mutually settled or judicially settled or judicially

determined.

8) The seller will be responsible for the payment of, and shall pay for, all utilities

used subsequent to the date of closing and to the date of delivery of possession.

Neither party shall take any action in regard to changing the name on any utilities

accounts until the date of delivery of possession.

9) Risk of casualty loss shall be in Seller to the date of closing of title and in

Purchaser thereafter. The parties will maintain and keep in force and effect fire or

homeowner’s insurance accordingly, but neither party shall have, and each hereby

expressly disclaims, any interest in any policy of the other.

10) Seller will, either by change of endorsement of former homeowner’s policy or by

new issuance, obtain and keep in effect a tenant liability policy for the period of

holdover possession with minimum limits of $ _________/$ ________ for

personal injury and $ ____________ for property damage.

11) Purchaser will, for the same period, obtain and keep in effect a homeowner’s

liability policy with minimum limits of $ _____________/$ ____________ for

personal injury and $ ____________ for property damage.

12) Seller will assume all obligations for maintenance and repair (other than related to

casualty events) of the property during the holdover period. The Seller will be

responsible for delivery of the property at the conclusion of the holdover in a

physical condition equal to that which existed at the time of closing of title.

13) The Seller will indemnify and hold the Purchaser harmless during the holdover

period from claims arising out of [his/her] said use and occupancy during that

period in favor of [himself/herself], members of [his/her] family and household

and all lawful guests, licenses and invitees.

14) The addresses, if any, other than those listed in the primary contract, which this

agreement amends, for the giving of notices hereunder, are to be as follows:

__________________________________________________________________

IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the

day and year first above written.

________________________________ ______________________________

Purchaser Seller

________________________________ ______________________________

Purchaser Seller

________________________________ ______________________________

Attorney for Purchaser Attorney for Seller