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FACTS:                    

The lender foreclosed on the residential real property and hired the agent to list it for sale.  During her initial viewing of the property, the agent discovered that it appeared to be occupied.  On a return trip to the property, the agent met the (now foreclosed upon) owner who claimed the property was “his house and he was not leaving.”  The lender, after learning of this position, instructed the agent to arrange for movers to remove the personal belonging during the day while to occupant was at work, and to change the locks.

ISSUE:                      

May the agent remove the personal property and change the locks?

ANSWER:                

No. 

DISCUSSION:         

Arizona law generally protects the right of occupants of residential property.  An agent should not remove personal belongings or change locks on an occupied residential property without a court order.  The lender will have to initiate a forcible detainer action to remove the occupant from the property.  See A.R.S. § 12-1173.01(A)(2).  The agent should take no steps to gain possession until the forcible detainer action is successfully completed and the occupant is legally removed from the property.