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posted: 4/20/2014 12:01 AM

Seller disputes damaging property after closing

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Q. I bought my first home a couple months ago. After the contract was signed, the sellers asked if I could rent the property back to them for a month after the closing. Although I was anxious to move in, they had a pretty good reason so I said OK. They paid me rent for the month equal to what my cost was for that month.

At the closing, my lawyer had an agreement prepared that stated the sellers would deposit $1,500 in escrow to guarantee they would move out when they said they would. Their lawyer held the $1,500.

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Well, they did move out when they said they would, but their movers put some gouges in the hardwood floor, in a very obvious spot and one of my doors was damaged. The estimate to repair the floor alone is over $1,000.

My lawyer wrote their lawyer requesting they turn over the $1,500 to me to repair the damage. The sellers claim they did not cause the damage and that the damage was there when they owned the house. There is no question in my or my Realtor's mind that the damage was not there when I signed the contract.

Now what do I do? My lawyer says it's not enough money for him to file a lawsuit and I should just forget it. I feel like an idiot because I did them a favor and now it's going to cost me a lot of money because of that. Any ideas?

A. I (like most real estate attorneys) am not a big fan of post-closing possession agreements, however, they are a part of our world so we deal with them. One of the reasons is already obvious to you. Another is who is liable in the event someone is injured at the property while the seller remains in possession?

My first thought is read the agreement your attorney prepared and presumably everyone signed. Does the agreement guarantee possession by a certain date or does it guarantee possession and that the property will be in the same condition that existed at the time your offer was made. A prudently drafted post possession agreement would include both the above elements.

If the agreement included both elements, you would have a basis to demand that the seller's attorney retain the escrow until such time as the matter is resolved.

If the agreement was simply a guarantee that the property would be turned over by a certain date, the attorney/escrowee would not have a basis to hold the funds. Many attorneys, however, would retain the funds upon learning of the dispute, simply to avoid making a wrong move and becoming liable themselves.

Regardless of whether or not the money is held, I agree with your attorney that the amount in dispute precludes retaining an attorney to file suit. In Cook County (and probably other counties as well), there is a forum designed for just this type of matter, called Pro Se court. It is designed and administered much like Peoples Court on television. It's inexpensive, quick and pretty easy.

After the case is filed and the defendants are served, on your trial date, you come into court and present your evidence. In your case, your evidence would be your and your Realtor's testimony that the damage didn't exist when the offer was made. Also, listing agents often prepare brochures of properties they are attempting to sell. Are there any pictures of the areas in question? Is it clear the damage didn't exist at that time?

Even if the brochure does not show the area clearly, you could probably obtain the actual photos taken by the listing agent, which could be enhanced to illustrate the areas in question.

Finally, did anyone else see the property? Would they be willing to testify? Listing agents keep records of people that visit the property. Also, certainly other agents in the area saw the property, though getting them involved may not be easy.

The good news is if you prevail, collecting, which often isn't easy, will probably not be an issue.

• Send your questions to Attorney Tom Resnick, 345 N. Quentin Road, Palatine, IL 60067, by email to tdr100@hotmail.com or call (847) 359-8983.

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