[WSBARP] removing occupant after sheriffs sale

Fri Jul 7 23:15:12 PDT 2023

I agree with Patrick that a writ of assistance is the way to go.
A writ of assistance is the appropriate process to issue from a court to place a execution sale purchaser in possession of the property as against parties who are bound by the judgment and who refuse to surrender possession. Terrell v. Allison, 88 U.S. 289, 291 (1874)). "It would be destructive of the due administration of justice if any court having custody of the res and authority to sell it should be without jurisdiction to put the purchaser in possession."  In re Benson-Beckmann Paint Co., 36 F.2d 580, 580 (5th Cir. 1929).  Washington courts have long used writs of assistance to place purchasers at judicial sales in possession of the property they have purchased when a prior occupant refuses to vacate. Marjorie Dick Rombauer, 27 Washington Practice, Creditors' Remedies § 3.16 (2021); Debenture Corp. v. Warren, 9 Wash. 312, 314-15 (1894) (reversing denial of writ of assistance); Hagerman v. Heltzel, 21 Wash. 444, 445-46 (1899) (affirming grant of writ of assistance). Washington courts issue writs of assistance when they have jurisdiction over the purchaser, the party in possession, and the property at issue. Security Savings and Loan Assoc. v. Busch, 84 Wn.2d 52, 54 (1974) (affirming grant of writ of assistance). The issuance of a writ of assistance is proper when "the right is clear, and there is no appearance of equity in the defendant, or where there is not a bona fide contest relative to the right of possession." Hagerman v. Heltzel, 21 Wash. at 447. A court need not hold a separate hearing to resolve the issue of possession before considering an application for a writ of assistance. Security Savings and Loan Assoc. v. Busch, 84 WN.2d at 54-55 ("the superior court had jurisdiction to consider respondent's request for a writ of assistance, and in doing so to determine whether respondent had a clear right to possession"). Appellate courts review decisions granting writs of assistance for abuse of discretion.  Hagerman v. Heltzel, 21 Wash. 447.

Rod Harmon

RODNEY T. HARMON
       Attorney at Law
         P.O. Box 1066
      Bothell, WA   98041
     Tel:   (425) 402-7800
     Fax:  (425) 458-9096
    www.rodharmon.com<http://www.rodharmon.com/>
   rodharmon at msn.com<mailto:rodharmon at msn.com>

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Patrick McDonald
Sent: Friday, July 7, 2023 12:22 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] removing occupant after sheriffs sale

What we've been seeing more recently is the purchaser filing a motion to intervene in the underlying foreclosure lawsuit followed by a motion for something akin to declaratory relief confirming their right to possession and for the issuance of a writ of assistance directing the sheriff to deliver the purchaser possession of the property. I'm not sure how receptive the sheriffs' offices are to these writs or what lengths they will go to carry them out, but courts seem to be granting these types of motions.

In your case, the nephew may claim ownership of the property, in which case they'd be entitled to possession during the redemption period, if any.

Patrick McDonald
_______________________
Pody & McDonald, PLLC
1000 Second Avenue, Ste. 1605
Seattle, WA 98104
T: 206-467-1559
F: 206-467-4489

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Bryce Dille
Sent: July 7, 2023 11:35 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] removing occupant after sheriffs sale

After a sheriffs sale where  owner was deceased  no probate started so def was the estate  and service by publication per court order and I foreclosed a lien against the property and sold it at sheriffs sale there is residing on property the nephew of the deceased and buyer at sale wants him off is the proper procedure to go under RCW 59.16 or under RCW 59.12.030 (6) or is there some other procedure Thanks

Bryce H. Dille
Dille Law, PLLC
2010 Caton Way SW Ste. 101
Olympia, WA 98502
Office: 360-350-0270
Cell: 253-579-5561

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