Self-Help Eviction: Don’t Even Think About It! Wrongful Foreclosure=Wrongful eviction

Posted on May 24, 2010 by Julie Brook

Here’s an all-too-common scenario these days: A property goes into foreclosure, the owner who buys the foreclosed property wants to evict the current tenants, who are living there lawfully. The owner decides to skirt the normal legal processes and engage in a self-help eviction. This is a very risky and potentially illegal course of action! Additionally when it is the lender evicting. If the foreclosure was Wrongful that makes the eviction Wrongful and substantial damages may be available as against the biggest banks in the world.

A self-help eviction can take many forms: changing the lock on a unit, adding a lock without providing keys to the tenant, cutting off utilities, and forcibly entering the rental unit and refusing to permit the tenant to reenter. These practices have one thing in common: to oust the tenant from possession without complying with the legal requirements for eviction.

California law is clear that an owner who has purchased property at a foreclosure sale cannot take possession after the foreclosure unless the occupants’ consent has been freely obtained or a judge has awarded possession following a court proceeding. See CCP §§1159-1179a. Also note that the law governing evictions after foreclosure is rapidly changing. In rent-controlled cities, the eviction of tenants of the borrower following foreclosure is prohibited unless the tenant defaults.

Unlawful self-help by a landlord or owner can result in

* Criminal penalties (see Pen C §§418, 602.5), and
* Actual and punitive damages (see Jordan v Talbot (1961) 55 C2d 597, 12 CR 488).

OwnerSecrets.com warns that self-help evictions can result in suits for the common law intentional torts of conversion, trespass to chattels, and trespass.

Self-help is never a good choice for evictions. Instead, evictions should always be handled through legal processes, generally by an unlawful detainer action, i.e., a fast, summary procedure that is generally limited to the issues of possession of the premises and associated damages.

On how to legally conduct a lawful eviction, see CEB’s online book Handling Unlawful Detainers and Landlord-Tenant Practice book (evictions following foreclosure are governed by both state and federal law and are covered in chap 8 of that book). On defending evictions, see CEB’s Eviction Defense Manual.

Also, check out our June programs on Representing Residential Landlords and Tenants in Unlawful Detainer Actions, which will be available On Demand beginning June 29th.

Author: timothymccandless

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