In most real estate closings, buyers and sellers resolve most, if not all of their issues, when the Agreement of Purchase of Sale is finalized and the conditional periods have passed.
In this hot tub closing example, the question was whether the hot tub should be removed from the property prior to closing. The answer can be found in what was agreed to in the Agreement of Purchase and Sale. If the Agreement states that the hot tub is included, then the purchaser gets the hot tub whether they want it or not. If the Agreement specifically excludes the hot tub, then this becomes a closing issue and must be brought to the attention of your real estate lawyer PRIOR to closing.
As an Ontario real estate lawyer, if this happened, I would tell the other side that I wouldn’t be able to close until the hot tub was removed with the other side responsible for costs, OR if my purchaser and the other side were agreeable, I would close in escrow with a holdback in the lawyer’s trust account until the matter was resolved. Another option would be to simply move the closing date to a later date to allow the sellers time to remove the hot tub, with the sellers being responsible for the additional costs.
Different situations call for different solutions so if this ever happens to you, you need to talk to your lawyer immediately and get the necessary legal assistance. Please remember that in Ontario, there is good case precedent that allows buyers to inspect the property they are buying prior to closing. Take advantage of your right to inspect to avoid unpleasant surprises after closing.
Carlson Ng, Barrister, Solicitor, & Notary Public.