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Is Self-Help Possession Okay?

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)

6 thoughts on “Is Self-Help Possession Okay?

  1. Do I need to change locks as soon as I receive certificate or ? Is that legal? What if the person has belongings In the home?

    1. Kristen, the real question is: “Is the property LEGALLY abandoned or not?” That is different from “vacant for a long time and in really bad shape.” If legally abandoned, you can change the locks. If not, you cannot. You will either have to get the owner to surrender or get an ejectment order. Please download my free video about possession issues for clarification about the “legally abandoned” issue.

  2. Denise, up until the past few months I have understood and interpreted diy possession as valid for vacant and un-maintained properties. What would you suggest to do then if I have taken possession of a property made improvements and discussed the redemption costs with the owner (told me they wanted to redeem) but disappeared for the past 8 months after claiming they wanted to redeem? Am I still entitled to the value of improvements and possession rights until it is redeemed?

    1. Jason, I would argue that the property was legally abandoned and the owner acknowledged that when he contacted you about redemption and payment for the improvements. If your method of taking possession was lawful or unlawful, that will continue through to the present. It’s not a matter of “still” being “entitled to the value of improvements.” You either always were entitled, or always were not entitled. I might argue that the properly was abandoned, but they changed their mind after they saw the improvements. Then they discussed redemption cost with you, found out it was too expensive, and again abandoned the property. I think that is a reasonable interpretation of the facts.

      1. If the owner has passed can you take possession

      2. This is an example: If John Smith dies, then title immediately transfers to his heirs. If John had a willing leaving everything to the Humane Society, then they are the owner as soon as John dies. If John did not have a will, then the statutes determine who inherits, according to the rules of Intestate Succession. The point is, SOMEBODY owns the property. Then the question is, has THAT person abandoned the property or not? Is is the same question you have to ask if John is still alive, except you ask if John has abandoned the property. So, short answer, the owner’s death does not change anything about the rules of taking DIY possession or not.

What do you think?