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Is Self-Help Possession Okay?

Posted by Denise Evans on

Tax sale investors are entitled to possession of property as soon as they obtain their tax certificate. That is in the statutes, at Ala. Code Section 40-10-74. But, what does that mean? If property is vacant, can the investor change the locks and take over the property?

I think the answer is no. Some other lawyers disagree with me. Some agree. You pick your expert and your strategy, and go with it, in my opinion. Here are my arguments why self-help possession is dangerous.

The statute that allows possession also says that if possession is not surrendered within six months after demand, then the certificate owner can file an ejectment lawsuit. It does not say, “If somebody is occupying the property and does not surrender possession….” I take that to mean that surrender of possession by the owner, or ejectment lawsuit by the investor, are the only two choices for lawfully gaining possession.

In addition, the 1943 Alabama Supreme Court case of Tensaw Land & Timber Co. v. Rivers (244 Ala. 657, 15 So.2d 411) says that “a suit to oust one in constructive possession when no one is in actual possession is as necessary as a suit against one in actual possession.” In other words, even if nobody is there, you must file an ejectment lawsuit to gain lawful possession. This is an old case, but it has never been overturned and is still good law.

In a quiet title lawsuit, the plaintiff must be in peaceable possession. It cannot have gained possession by fraud, trickery, violence, or breach of the peace. Turnley v. Hanna,  67 Ala. 101 (1880) I think this rational applies to tax sales possession, also.

Finally, things will be too much of a mess if courts have to constantly decide where to put the line, and when people have gone over the line. What if the owner went to WalMart and the investor changed the locks? What if the owner had not been to the property in many months, but was paying the power bill and cutting the grass? What if they were working on it every now and then, as they saved money from their paycheck? What if they had been sick for six months and unable to go to the property? Is it really fair for an investor to swoop in, take possession, make improvements, and make a property too expensive to redeem? I think the courts would say, “No, it’s not fair. You can’t do that.”

A far more sensible rule is the one I advocate, and the one supported by the 1943 decision. If an owner surrenders possession (either by telling you that or signing a lease with you) then you can go into possession. If you have an ejectment order, then you can go into possession. If the owner TELLS you the property is abandoned and you can do whatever you want, you can go into possession. But, they have to tell you. Legally abandoned is completely different from “vacant and in really bad shape for many years.” (see case cites, below)

If someone tells you they intend to redeem, the property is definitely NOT abandoned.

Finally, if you have done everything you can to find the owner but can’t, then you just have to punt, as they say. Post your no trespassing notices. Talk to all the neighbors and tell them your plans. Board up the windows. Lean a 4×8 sheet of plywood against the front door, with several colors of paint on it, like you are trying to decide paint colors. Let things “season” for 60-90 days, to see if anybody comes out of the woodwork. If not, then proceed slowly and cautiously.

Relevant case cites:

•“Abandonment  is the relinquishing of a right or interest with the intention of never again claiming it.” L&N Enters., LLC v Lioce Props, LLP, 51 So.3d 273 (Ala. 2010) •Abandonment implies a voluntary act.  Rowland v. Landiga’s Heirs, 21 Ala. 9 (1852) •Abandonment is a jury question.  Buck v. Louisville & N. R. Co., 159 Ala. 305, 48 So. 699 (1909) •Temporary failure to maintain property is not an abandonment unless coupled with intention.  Hughes v. Anderson, 79 Ala. 209 (1885)

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  • This is a very informative article! I presently hold the certificate to a property in which the owner has constructive possession. Owner wants to redeem but only wants to pay for delinquent taxes only and not pay me money owed for what was done to maintain the property. (They charge weed liens in the city). Nor has the proper steps been followed to initiate the redemption process. I was sent a affidavit via email instead of certified letter. I responded via email AND certified letter and there was no response within the 10 days allowed nor any other form of communication. Weeks pass by and just recently after cutting the grass on the property I am contacted again via email. I have had this certificate since May. Should I send a request for the owner to remove their personal property and if no cooperation file the ejectment order six months later?

    Yaminah Muhammad on

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