ISSUE:

The foreclosure sale is scheduled for November 15. The owner of the home has listed the home for sale. Although the home is not occupied, the listing broker visits the home almost daily, and the home is in good condition. On September 30, the lender’s representatives force entry into the home by breaking the locks. The lender’s representatives refuse to permit the owner or the listing broker any access to the home. Is the lender allowed to forcibly take possession of the home prior to the foreclosure sale?

ANSWER:

Probably not. The general rule is that the lender has no right of possession until the completion of the foreclosure sale, unless the lender’s security interest in the home is in danger. See A.R.S. § 33-703. In other words, if the home is abandoned and there is the potential of vandalism or other damage to the home, the lender may have the right to take possession of the home prior to the foreclosure sale. If the home is in good condition with almost daily supervision by the listing broker, however, the lender probably has no right to take possession or forcibly enter the home.

Arizona REALTOR® February 2009


About the Author

Michelle Lind

K. Michelle Lind, CEO of Arizona REALTORS®, is also an attorney, State Bar of Arizona board certified real estate specialist, and the author of Arizona Real Estate: A Professional’s Guide to Law and Practice.
Please note that this article is of a general nature and may not be updated or revised for accuracy as statutory or case law changes following the date of first publication. Further, this article reflects only the opinion of the author, is not intended as definitive legal advice and you should not act upon it without seeking independent legal counsel.