Can a loan servicer forcibly enter a property prior to foreclosure?

By
Real Estate Broker/Owner with Richard Weisser Realty

Who can enter a property prior to foreclosure?Property preservation is a hot topic these days. If a servicer determines that a house is no longer occupied, they will enter the property by any means, change the locks, and start performing interior and exterior maintenance.

Property owners (and very often their real estate agents as well) often become incensed at the intrusion. They ask: “What gives them the right to enter MY house without MY permission?”

And while that is a legal question that should always be directed to an attorney in the state where the property is located, it is very likely that buried somewhere in that pile of paperwork that the borrower signed at closing was a provision to allow a servicer to enter an abandoned property for the purpose of preservation.

In any case, legal or not, it happens every day.

It’s just another facet of the new real estate reality.

Note: Laws vary by state. Always consult an attorney in your state with any legal questions.

Comments (45)

Cheryl Thomson REALTOR Army Ret
United Real Estate (703.216.5635) cheryltee47@gmail.com - Prince William, VA
Associate Broker in Northern Virginia

If you have been behind in your payments and EVER call in.  One of the questions they ALWAYS ask are "Are you occupying the property"  There's a reason for that.

Oct 03, 2012 01:58 AM
Janna Scharf
Keller Williams Realty Coeur d'Alene - Coeur d'Alene, ID
Coeur d'Alene Idaho Real Estate Expert
Yep, I have a new listing that I just found padlocked. I certainly don't blame the lender for wanting to secure and protect their "asset."
Oct 03, 2012 02:00 AM
Doug Maas
RE/MAX of Great Falls - Great Falls, MT
Broker/Owner - REMAX Of Great Falls - MT Real Esta

I have found it helpful to befriend the contractors working for the property preservation companies so they will call and check with me on my listings before changing the locks.  If they do have to change the locks, they will not change them all and will put the lockbox in a safe place for me to retrieve.  The bank will send the listing agent the new key if the locks are changed while it is listed.

Oct 03, 2012 02:16 AM
Danielle Garofalo
Founder at Noisecut Media - Manhattan, NY

Like Janna (Comment #27), I have seen properties with additional lockdown protection. This certainly is an interesting topic for discussion....

Oct 03, 2012 02:33 AM
Donald Reich
Prudential Centennial - New Rochelle, NY

Interesting point. What if the property is still occupied . . . by either the owner or a tennant?

 

  

Oct 03, 2012 02:41 AM
Richie Alan Naggar
people first...then business Ran Right Realty - Riverside, CA
agent & author

Local laws may prevail and I will tell you this...A woman screaming has the final say on this no matter what the paperwork may say

Oct 03, 2012 03:34 AM
Patty Da Silva, Davie, Southwest Ranches Cooper City, Plantation, Weston, REALTOR
BROKER of Green Realty Properties® - 954-667-7253 - Davie, FL
Top Listing Broker

We deal with this once in a while. We call field services and make it abundantly clear that the house is just vacant and not abandoned. They usually leave it alone then or send us the keys if they've already changed the locks.

Oct 03, 2012 05:15 AM
Kevin Mackessy
Blue Olive Properties, LLC - Highlands Ranch, CO
Dedicated. Qualified. Local.
I'm not surprised this is the case. Just another thing to think about for brokers.
Oct 03, 2012 05:17 AM
Spectrum Inspection Group
Spectrum Inspection Group - Las Vegas, NV

I have seen lenders drill through locks and change them before they foreclosed!  I have always wondered about the legalities of it.

Oct 03, 2012 06:14 AM
Ginger Harper
Coldwell Banker Sea Coast Advantage~ Ginger Harper Real Estate Team - Southport, NC
Your Southport~Oak Island Agent~Brunswick County!

It does seem like an invasion of privacy.  I am not suprise at what they do anymore.

Oct 03, 2012 06:20 AM
Beth Atalay
Cam Realty and Property Management - Clermont, FL
Cam Realty of Clermont FL

I love seeing a sticker on the door that reads "This property has been winterized" we're in FL!! I've seen where preservation companies have changed the locks on an occupied property as well. They have clear instructions in "most cases" from the lender to verify the house is indeed vacant/abondoned, however, they obviously don't always. I like the phrase "The new Real Estate reality" that is sooo true. Everyday is an adventure.

Oct 03, 2012 06:57 AM
William Feela
WHISPERING PINES REALTY - North Branch, MN
Realtor, Whispering Pines Realty 651-674-5999 No.

I think you would be hard pressed to find that the bank is breaking the law, and if they were...Who is going to fight them in court.

Oct 03, 2012 07:10 AM
Hella Mitschke Rothwell
(831) 626-4000 - Honolulu, HI
Hawaii & California Real Estate Broker

Had a short sale listing with a tenant. When the notice was put on the door, the tenant freaked out because she thought she had to leave within 72 hours. The tenant had so little furniture, guess they thought it was abandoned. Oh, and I think they threatened to shut off the water.

Oct 03, 2012 07:30 AM
Harry F. D'Elia III
RentVest - Phoenix, AZ
Investor , Mentor, GRI, Radio, CIPS, REOs, ABR

They do have a right to look at their asset. They do it every day for banks.

Oct 03, 2012 08:16 AM
Joan Whitebook
BHG The Masiello Group - Nashua, NH
Consumer Focused Real Estate Services

I would think that the papers the buyers sign at closing certainly would permit the lender to preserve the asset. 

Oct 03, 2012 11:14 AM
Patricia Kennedy
RLAH Real Estate - Washington, DC
Home in the Capital

My first thought was, do they ever walk in on people who are totally, um, indisposed?

Oct 03, 2012 12:04 PM
Melissa Zavala
Broadpoint Properties - Escondido, CA
Broker, Escondido Real Estate, San Diego County
Good point. We often have trouble with lenders changing locks prior to foreclosure.
Oct 03, 2012 01:02 PM
Christine Donovan
Donovan Blatt Realty - Costa Mesa, CA
Broker/Attorney 714-319-9751 DRE01267479 - Costa M

Richard - How many people actually read every line of their loan docs. It's probably in there.

Oct 03, 2012 04:24 PM
Gina Chirico
Lattimer Realty - Fairfield, NJ
Real Estate Agent - Essex County, New Jersey

Like others have said, I know of banks who've changed the locks and listing agents had no idea until someone went to use the key in the lockbox and it wouldn't work!  Even after that, the bank still didn't give the agent a key to access the property for showings.  Once listed as short sales, these properties were eventually bank owned and all because agents couldn't get access to show the home. 

Oct 03, 2012 09:59 PM
Carol Zingone
Berkshire Hathaway Home Services Florida Network Realty - Jacksonville Beach, FL
Global Realtor in Jax Beach, FL - ABR, CRS, CIPS
Richard, good post. I was not aware of the clause the borrower signed at closing that specifically states this!
Oct 03, 2012 11:06 PM