[WSBARP] [WSBAPT] Question about rights of possession after Sheriff's Sale

Fri Feb 24 09:22:27 PST 2017

This is not all that simple. The statute says that successors in interest have homestead rights which include here the right to possession during redemption:

(1) Real property sold subject to redemption, as provided in RCW 6.21.080, or any part thereof separately sold, may be redeemed by the following persons, or their successors in interest:

(a) The judgment debtor, in the whole or any part of the property separately sold.

(b) A creditor having a lien by judgment, decree, deed of trust, or mortgage, on any portion of the property, or any portion of any part thereof, separately sold, subsequent in priority to that on which the property was sold. The persons mentioned in this subsection are termed redemptioners.

(2) As used in this chapter, the terms “judgment debtor,” “redemptioner,” and “purchaser” refer also to their respective successors in interest.

RCW 6.23.010

And, title vests in heirs immediately upon death, subject to rights and duties of PR, debts of the estate, family support allowances, and a couple of others. RCW 11.04.250.

Any purchaser under the facts you describe is as Wendy says likely a tenant by sufferance, but in addition, likely an heir who can certainly make a good argument that as such, he has the right to possession during redemption. 

Without more time, that is off the top of my head; I would advise caution. 

Rob

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Wendy Walter
Sent: Friday, February 24, 2017 8:47 AM
To: WSBA Real Property Listserv; 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] [WSBARP] Question about rights of possession after Sheriff's Sale

Consult the redemption law: http://app.leg.wa.gov/RCW/default.aspx?cite=6.23.110 (also copied below).  

I’ve had cases where Heirs have claimed the right to homestead and therefore possession during the redemption period. And although I don’t agree that the heir would be the judgment debtor (as they aren’t obligated on the debt, they are only joined in the foreclosure for the purposes of terminating their ownership interest in the property), the sheriff’s offices often require that we list them as a judgment debtor for any order of sale and sheriff’s instructions in order to make sure that they get notices of the sale.  

RCW 6.23.110

Possession during period of redemption.

(1) Except as provided in this section and RCW 6.23.090 <http://app.leg.wa.gov/RCW/default.aspx?cite=6.23.090> , the purchaser from the day of sale until a resale or redemption, and the redemptioner from the day of redemption until another redemption, shall be entitled to the possession of the property purchased or redeemed, unless the same be in the possession of a tenant holding under an unexpired lease, and in such case shall be entitled to receive from such tenant the rents or the value of the use and occupation thereof during the period of redemption.

(2) If a mortgage contains a stipulation that in case of foreclosure the mortgagor may remain in possession of the mortgaged premises after sale and until the period of redemption has expired, the court shall make its decree to that effect and the mortgagor shall have such right.

(3) As to any land so sold which is at the time of the sale used for farming purposes, or which is a part of a farm used, at the time of sale, for farming purposes, the judgment debtor shall be entitled to retain possession thereof during the period of redemption and the purchaser or his or her successor in interest shall, if the judgment debtor does not redeem, have a lien upon the crops raised or harvested thereon during said period of redemption, for interest on the purchase price at the rate of six percent per annum during said period of redemption and for taxes becoming delinquent during the period of redemption together with interest thereon.

(4) In case of any homestead as defined in chapter 6.13 <http://app.leg.wa.gov/RCW/default.aspx?cite=6.13>  RCW and occupied for that purpose at the time of sale, the judgment debtor shall have the right to retain possession thereof during the period of redemption without accounting for issues or for value of occupation.

Wendy Walter | Partner - Pacific Northwest | Member State Bars of WA and OR

McCarthy ♦ Holthus LLP

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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Scott Hildebrand
Sent: Friday, February 24, 2017 8:38 AM
To: 'WSBA Probate & Trust Listserv'; 'WSBA Real Property Listserv'
Subject: [WSBARP] Question about rights of possession after Sheriff's Sale

Here is one for which I am trying to get an answer quickly:

Client wants to buy real property at an auction- judicial foreclosure.

The owner passed, leaving two heirs. One of the heirs is absent, wants to let it go and is not an issue.

The other heir has moved in and is asserting his rights to redeem after the sale.

My client doesn’t want to buy a property in which a third party has occupation rights.

Question:

If my client buys the property at auction, can he evict the heir after getting a deed?

I presume that is the 20 day notice game, tenancy at sufferance.

During the eight month redemption period, does the heir have a right to possess?

Time is of the essence since the auction is slated to happen in an hour or so…

Thanks all,

Scott Hildebrand

Attorney at Law

206-605-8874

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