At the time of closing the Seller is hospitalized. The Seller’s
furnishings and pets are in the home. The Broker is a dual agent,
and has the keys to the home. The Buyer is demanding the keys
from the Broker because the Contract states that the Buyer is
entitled to possession at closing. Can the Broker deliver the
keys to the Buyer?
Answer: No. Although the Seller is in breach of contract
for failure to deliver the possession of the home to the Buyer
at closing, the Buyer is not entitled to take possession of the
home without a court order. The Broker as a dual agent should
do nothing with the keys without mutual instructions from the
Buyer and Seller. If the Buyer wants possession of the home, the
Buyer is required to deliver a 5-day notice to the Seller demanding
possession of the home. If the Seller fails to deliver possession
of the home within this 5-day period, the Buyer is required to
file a forcible detainer action in Superior Court against the
Seller. A.R.S. § 12-1173.01(A)(5). In addition to a court order
for possession of the home, the Buyer would be entitled to damages
such as the costs for storage and substitute housing, plus attorneys’
fees and court costs.
