As a Maryland foreclosure lawyer, I have helped clients whose homes have already being in sold in foreclosure negotiate favorable terms to vacate the property. The statutory process according the foreclosure laws requires a ratification of the foreclosure sale and the buyer to obtain a judgment of eviction from the Circuit Court. However, the Court of Appeals also recognized the common law right of buyers to enter a premises in a non-violent matter and take possession following a foreclosure sale in 2012 in the Nickens Case. This ruling triggered the Maryland legislature to enact a new law in 2014 creating stringent requirements for when a buyer can take possession without a court order. To engage in what is known as self-help by having a realtor or other professional change the locks and take possession of the foreclose home, the lender has make sure that:
- the property is vacant, and
- place a 15 day notice of the intent to enter the property on the front door of the property.
Trespassers and others with no right or business being the property are not covered by this new law. Failure to follow this procedure gives the homeowner or other lawful resident such as a tenant the right to sue the buyer for actual damages and lawyer fees. The complete rule is attached below. REAL PROPERTY
TITLE 7. MORTGAGES, DEEDS OF TRUST, AND VENDOR’S LIENS
SUBTITLE 1. MORTGAGES AND DEEDS OF TRUST
Md. REAL PROPERTY Code Ann. § 7-113 (2014)
§ 7-113. Prohibition on nonjudicial evictions.
(a) Definitions. —
(1) In this section the following words have the meanings indicated.
(2) “Party claiming the right to possession” means a person or successor to any person who:
(i) Does not have actual possession of a residential property; and
(ii) Has or claims to have a legal right to possession of the residential property:
1. By the terms of a contract or foreclosure sale; or
2. Under a court order, including a court order extinguishing a right of redemption.
(3) (i) “Protected resident” means an owner or former owner in actual possession of residential property.
(ii) “Protected resident” includes a grantee, tenant, subtenant, or other person in actual possession by, through, or under an owner or former owner of residential property.
(iii) “Protected resident” does not include a trespasser or squatter.
(4) “Residential property” means a building, structure, or portion of a building or structure that is designed principally and is intended for human habitation.
(5) “Threaten to take possession” means using words or actions intended to convince a reasonable person that a party claiming the right to possession intends to take imminent possession of residential property in violation of this section.
(6) “Willful diminution of services” means intentionally interrupting or causing the interruption of heat, running water, hot water, electricity, or gas by a party claiming the right to possession for the purpose of forcing a protected resident to abandon residential property.
(b) In general. —
(1) Except as provided in paragraph (2) of this subsection, a party claiming the right to possession may not take possession or threaten to take possession of residential property from a protected resident by:
(i) Locking the resident out of the residential property;
(ii) Engaging in willful diminution of services to the protected resident; or
(iii) Taking any other action that deprives the protected resident of actual possession.
(2) (i) Except as provided in subparagraph (ii) of this paragraph, a party claiming the right to possession may take possession of residential property from a protected resident only in accordance with a writ of possession issued by a court and executed by a sheriff or constable.
(ii) A party claiming the right to possession of residential property may use nonjudicial self-help to take possession of the property, if the party:
1. Reasonably believes the protected resident has abandoned or surrendered possession of the property based on a reasonable inquiry into the occupancy status of the property;
2. Provides notice as provided in subsection (c) of this section; and
3. Receives no responsive communication to that notice within 15 days after the later of posting or mailing the notice as required by subsection (c) of this section.
(c) Posting notice where protected residents have abandoned or surrendered possession. —
(1) If a party claiming the right to possession of residential property reasonably believes, based on a reasonable inquiry into the occupancy status of the property, that all protected residents have abandoned or surrendered possession of the residential property, the party claiming the right to possession may post on the front door of the residential property and mail by first-class mail addressed to “all occupants” at the address of the residential property a written notice in substantially the following form:
“IMPORTANT NOTICE ABOUT EVICTION
A person who claims the right to possess this property believes that this property is abandoned. If you are currently residing in the property, you must immediately contact:
Name
Address
Telephone
Date of this notice
If you do not contact the person listed above within 15 days after the date of this notice, the person claiming possession may consider the property abandoned and seek to secure the property, including changing the locks without a court order.”.
(2) The written notice required by this subsection shall be:
(i) A separate document; and
(ii) Printed in at least 12 point type.
(3) The outside of the envelope containing the mailed written notice required by this subsection shall state, on the address side, in bold, capital letters in at least 12 point type, the following: “Important notice to all occupants: eviction information enclosed; open immediately.”.
(d) Penalties. —
(1) If in any proceeding the court finds that a party claiming the right to possession violated subsection (b) of this section, the protected resident may recover:
(i) Possession of the property, if no other person then resides in the property;
(ii) Actual damages; and
(iii) Reasonable attorney’s fees and costs.
(2) The remedies set forth in this subsection are not exclusive.
(e) Exception. — This section does not apply if the parties are governed by Title 8, Subtitle 2, or Title 8A of this article.
