Homeowners facing foreclosure should be aware of the eviction process after their home has been sold at a foreclosure sale. Many homeowners are under the mistaken belief that immediately after the foreclosure sale, a sheriff will immediately be at their door to evict them. This simply isn’t true and an understanding of Arizona’s eviction laws is necessary so that homeowners will be aware of their rights and obligations after their home has been foreclosed upon.
Arizona law generally prohibits the landlord or owner of residential property from exercising so-called “self-help” remedies to evict their tenants or other occupants of the property. Thus, the owner cannot change the locks or shut off utilities without first bringing an eviction lawsuit.
Residential eviction lawsuits in Arizona are called forcible entry and detainer actions. Arizona’s forcible entry and detainer actions laws specifically cover evictions by the new owner of a home (often the former mortgage lender) following a trustee’s sale or foreclosure.
The first step which the new owner must take to evict the former owner is to make a written demand for possession. Assuming the former owner doesn’t leave after receiving the written demand (Arizona law is unclear as to the time period the former owner has to vacate after receiving the notice), the new owner must file a complaint in court and serve a summons upon the former owner in order to evict him. Trial is generally supposed to be five business days after the complaint is filed, although the trial date may be extended for a few more days. If the former owner doesn’t appear for trial or is found guilty, an eviction order (called a “writ of restitution”) will be issued directing the sheriff to evict the former owner. The writ cannot be issued until five calendar days after the judgment is entered. The sheriff can then can go to the property and forcibly remove the former owner, although in reality because of the backlog of foreclosures in Arizona today, that time period is likely to be longer.
A major exception to the rule that residential owners of property cannot exercise self help is if the property has been abandoned by its former occupant. A relatively common occurrence after foreclosure is for the new owner (or more likely an agent for the new owner) to inspect the home and upon inspection find that most or all of the personal belongings of the former occupant have been removed. Under the belief that the property has been abandoned, the new owner in order to avoid a costly and time consuming eviction action and to possibly prevent the vacant home from being vandalized, exercises self help and changes the locks. Frequently, however, the reason the personal property has been removed is because the former owner is in the process of moving out but has not yet done so and is actually still living at the home! Although the law in Arizona is not crystal clear on the issue of abandonment claims in cases of evictions after a foreclosure, in order to avoid a claim of abandonment by the new owner, the former owner should notify the new owner, in writing by certified mail, return receipt requested, that he is not surrendering the home and is, in fact, still living there.
Homeowners should be aware that if they continue to occupy the property following a foreclosure sale, the new owner may try to characterize this post-sale occupancy as a criminal trespass and/or bring a lawsuit against the former homeowner to recover damages which may be in the form of a reasonable rent for the number of days that the new owner did not have possession of the home. Because Arizona’s laws are relatively complex and sometimes unclear, it is of course recommended that legal counsel be consulted by homeowners potentially facing eviction after foreclosure.