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This is a question exploring a solution to this situation Curious case of real-estate transaction with predatory tenants

A seller has entered an agreement with a buyer in the jurisdiction of Nova Scotia to provide the buyer with vacant premises on closing. The problem for the seller is that they have predatory tenants that know the law, and who are by law allowed to stay past the closing date.

The tenants are asking the seller for money in return for moving out before closing. The problem for the seller is that the tenants keep breaking agreements.

Possible solution?

Could the seller and the tenants sign an affidavit affirmed in front of a justice of the peace, stating the following:

  1. The tenants recognize their legal right to stay on premises indefinitely.
  2. The tenants confirm that they themselves, without being prompted by the seller, have proposed to wave the legal rights stated above (1) if the seller pays $1000 to the tenants.
  3. The payment schedule shall consist of 2 deposits, one half before the closing date, and one half after the tenants have permanently vacated the premises.
  4. The tenants recognize that by signing this agreement, the tenants relinquish any and all rights to remain on the property after the [closing date]. The tenants agree that their presence on the premises after the [closing date] shall be considered illegal and that it shall be considered an act of trespassing.

The question:

If the tenants have signed this affidavit and are still there past the agreed upon date, can the sheriff arrest/evict them? Or will it still have to go to the tenant board?

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  • I think a common way to resolve this problem is to make the offer much simpler: tell the tenants that if they move out and terminate their lease by date X, you will pay them $Y (after they have moved out). – Nate Eldredge Nov 25 '19 at 8:30
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A contract outside the law isn’t a contract

The rather elaborate bells and whistles you propose around the agreement doesn’t change the fact that it is fundamentally a contract.

If the tenants have rights, it’s extremely likely that the law will not allow them to contract to waive those rights and any contract that purports to do so would be void.

Notwithstanding, eviction requires an eviction notice - not an allegation that the tenant has broken the lease (or any other contract).

Basically this seller has royally forked themselves by promising something they can’t deliver. The damages can be huge and the sale may fall over as well. They should be trying to negotiate a solution with both the buyer and the tenant.

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  • Can you cite a source for "It’s extremely likely that the law will not allow them to contract to waive those rights and any contract that purports to do so would be void"? I was under the impression that this happened all the time, e.g. a settlement or arbitration clause waiving the right to sue, an NDA waiving the right to disclose, etc. – sharur Nov 25 '19 at 7:01
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    @sharur if tenant’s rights could be waived by contract then every lease offered by a landlord would do it. For this reason, these laws are typically “no contracting out”. – Dale M♦ Nov 25 '19 at 7:04
  • Can the issue be fixed by making it a straight buyout? If the tenants terminate their lease by date X, seller will pay them $Y. Then the tenant is not contracting to waive their right - they can move out or stay, but they only get the money if they move out. – Nate Eldredge Nov 25 '19 at 8:33
  • @NateEldredge I don't know if the tenants will agree to a payout after they move. Thus the affidavit. – Anton Nov 25 '19 at 12:57
  • @DaleM Even if the tenants are receiving compensation that they themselves asked for? – Anton Nov 25 '19 at 12:57
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I'm answering my own question here, in compliment with @Dale M.

The idea with the affidavit does not work, because the Sheriff can only enforce a court order, which the affidavit is not.

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