Q: I purchased a foreclosed property at a sheriff’s sale. There are people living there and they refuse to leave. What are my rights as the new owner?
A: I recently had a case where one of the previous owners were still living in the foreclosed property. My client had purchased the property in a sheriff’s sale. The wife (who was still living in the foreclosed property) claimed that we had to pursue a writ of possession presumably through the Franklin County Sheriff or the Franklin County Common Pleas Court. She objected to our eviction action on those grounds. She obtained representation through the Tenant Advocacy Project. Her lawyers attempted to take the same stance and claimed that my only remedy was to pursue a writ of possession through the sheriff. Of course, they probably were just assigned the case on the morning of the eviction hearing so they had little if any credibility and probably zero background or experience in eviction law. They demanded to know what code section I relied upon when I claimed that my client had the option to proceed with an eviction case.
Well let’s start out with ORC §1923.02 – Persons subject to forcible entry and detainer action. Specifically, section A(3):
(3) In sales of real estate, on executions, orders, or other judicial process, when the judgment debtor was in possession at the time of the rendition of the judgment or decree, by virtue of which the sale was made.
Under this code section, former owners (now judgment debtors) who remain in possession of foreclosed upon homes are subject to the eviction process. The wife, still in possession, was wrong to insist that the only option is through a writ of possession and the Franklin County Sheriff was also wrong to advise her in this manner.
Next step – how do we initiate an eviction action against former owners who remain in possession of foreclosed property?
ORC §1923.04 governs initiating an eviction action against former owners who remain in possession of foreclosed property. It states:
(A) Except as provided in division (B) or (C) of this section, a party desiring to commence an action under this chapter shall notify the adverse party to leave the premises, for the possession of which the action is about to be brought, three or more days before beginning the action, by certified mail, return receipt requested, or by handing a written copy of the notice to the defendant in person, or by leaving it at the defendant’s usual place of abode or at the premises from which the defendant is sought to be evicted.
Every notice given under this section by a landlord to recover residential premises shall contain the following language printed or written in a conspicuous manner: “You are being asked to leave the premises. If you do not leave, an eviction action may be initiated against you. If you are in doubt regarding your legal rights and obligations as a tenant, it is recommended that you seek legal assistance.”
We begin the eviction process by serving a three day notice upon the former owner. Once that expires, an eviction complaint may be filed in court.
The Protecting Tenants at Foreclosure Act of 2009 came to an end on December 31, 2014, and I am not aware of any Ohio law that has extended that protection to tenants. The former owner could not claim refuge under that Act as former owners did not fall within its purview.
The attorneys for the former owner finally backed down after I called their bluff and agreed to a move out date. Interestingly, they wanted my client to dismiss the second cause of action at the initial eviction hearing. It is unwise to evict the second cause of action for damages at any time prior to the occupant’s move out. While the occupant is still in possession of the premises, he or she is responsible for any damage to the premises. Keeping the second cause open and active, protects the new owner’s rights.
The general procedure for obtaining a writ of possession is the new owner would file for one after receiving the sheriff’s deed to the property. The sheriff generally gives the former owner/occupant 10-14 days to move out of the home which can be extended to 30 days if hardship is shown and accepted. I’ve attached a sample writ of possession praecipe.