The article in question is here and doesn’t mention my question about squatter’s rights, but does pose the question: Assuming other police departments follow suit, and nobody gets physically evicted from homes, how long would someone have to stay in the home before they could legally claim squatter’s rights?
Is such a thing possible in the US? Only in certain towns and states?
Wow. I never thought of that happening before. Normally, if you win an eviction action, the court issues a writ of possession to the sheriff directing the sheriff to perform the eviction of whomever is in possession of the property. A writ is essentially an order from the court. The sheriff is taking it upon himself to deliberately ignore a court order.
Perhaps the people can recall or impeach the sheriff. That assumes, however, the political will exists to do so.
Perhaps the landlords can ask the Governor to order the state police to enforce the writs.
My understanding is that adverse possession (squatters’ rights) requires that the owner not make any attempts to recover the property. Thus, it probably would not apply in this case - the attempt was made by the owner, that the sheriff didn’t carry through is probably irrelevant. But, IANAL, so I could be completely wrong on this.
I do recall a landowner (neighbor of a friend) who, once a year, would block a commonly used shortcut across a corner of his property. He didn’t really mind the kids using it on their way to school, but he blocked it once a year to show that the usage was voluntary, not due to indifference. He may or may not have needed to do this.
I suppose the county court could hold the sheriff in contempt and ask the state police to step in, if it is so inclined.
I guess one question is what happens when a county sheriff refuses to uphold the law? What if the county court refuses to take action against the sheriff?
I suppose the answers are (1) state police take over; perhaps ultimately (2) removal of the sheriffs and judges via impeachment; and/or (3) holding sheriffs and judges in contempt as the matter winds its way up the appellate courts.
this might sound like a nitpick, but I really don’t think it is – I got the sense, reading the article, that the landlords aren’t actually requesting any evicting; it’s the banks.
Many jurisdictions have laws protecting the rights of tenants who haven’t done anything wrong, ensuring that they have a certain amount of time, resources, or options available to find an alternative. It’s possible that the sheriff’s choice not to evict is legally correct.
My assumption is that the landlord or owner (bank) has won an eviction action and has secured a valid writ of possession that the sheriff refuses to uphold. Otherwise, what is there for the sheriff to refuse? I guess the sheriff could believe the writs to be legally defective somehow, but it’s not the place of the sheriff to make that determination. That’s the role of the higher courts. The sheriff’s job is to enforce the writ.
Sheriff Dart’s reason for not taking part in evictions is that he’s thinks many of the people being evicted are renters (who’ve been paying their rent) as opposed to owners who’ve defaulted on their mortgages. His office isn’t told who’s a renter and whose’s an owner. I see his point. Why should a tenant who’s been following their lease and paying rent be evicted because their landlord’s a deadbeat? Why shouldn’t the bank be forced to take over as landlord (at least until the lease runs out)? Isn’t that what normally happens with new owners take over a rental property? Granted then they’d have to deal with a angry owner giving somebody a lease with absurdly low rent.
In most cases, a foreclosure terminates the tenant’s leasehold interest and the bank can evict former owners and tenants through the courts, although tenants usually have more rights in this regard than former owners.
So, the bank should serve papers (e.g., eviction notices, summons, etc.) on the occupants, and if the occupants are tenants, then the tenants should appear in court and assert their rights as tenants.
Banks or new owners via foreclosure should follow the tenant rules for all post-foreclosure evictions to ensure they can evict anyone in possession, whether tenant or former owner. If the bank followed the proper procedures, then it gets a judgment for possession and the court issues a writ of possession to the sheriff.
I guess my point is that by the time it gets to the sheriff, all the rights of the parties should have been adjudicated (in an ideal world).
Living in Foreclosure Central I can tell you that it’s been a huge problem here. Most of it caused by foreclosures notices going to the absentee landlord or in some cases the landlord intercepting them. I must have seen a dozen stories like this in the past year.
Probably what is happening is the landlords are absentee landlords and the new owners (banks) are filing eviction actions and serving the papers to the landlords at remote locations, without notice to the tenants. If that’s true, then at some point, the bank gets a judgment for possession and the court issues a writ to the sheriff. The sheriff then serves an eviction notice at the property. That is when the tenants are first made aware of the action and assert their rights. The tenants typically give the sheriff a form, halting the eviction, and placing the matter back in the court. I guess I don’t see why the sheriff is refusing to act in these cases.
I agree the fact that tenants are often unaware of pending foreclosures is a huge problem, but the sheriff is not involved in evictions at the foreclosure stage. It sounds like the sheriff in the article is refusing to take part in the evictions following the foreclosure.
I wish there was more information in the article. Has anyone seen anything else with more detail about Sheriff Dart and his master plan?
ETA: OK, here’s a little more:
The procedural posture of the cases where the sheriff is “refusing” to evict is not clear at all.
A ha!
Man, that really sucks in Illinois. In my state (NH), landlords cannot enter the rented property, remove personal belongings, change the locks or turn off the power, even if they get a writ. They have to wait for the sheriff to enforce the writ. It can take months if a tenant resists, and even then, they are responsible for securely storing the tenants belongings for 28 days after the sheriff has executed the writ, and allow the tenant to retrieve them without payment of rent or storage fees.
True, but that sounds like a matter for the courts to decide and not the sheriff. I see no difference in a private citizen ignoring a court order because he felt that a certain law wasn’t being followed. That private citizen would get a contempt citation.
It is a dangerous slope to start down to allow a person with a position of power to ignore an order from a lawful court…
Didn’t anyone read the article? He’s saying that he’s not going to evict if there isn’t sufficient probable cause to evict them essentially. That does fall within the Sheriff’s judgment. It would be kind of convenient if they would simply evict someone who never saw it coming, put all their stuff on the street and then say, “Let the court decide who is right.”, after the banks have already gotten what they wanted. The banks should have to prove that they have sufficiently notified the renters. The extra procedural paperworks can be paid for with bailout money.
jtagain That depends on what the court order says doesn’t it? Evict the landlords or evict the tenants?
I think I have a solution worthy of Solomon. Locate the absentee landlord, evict him from his house, and let the renter live there!
Yep, we’ve had that too, I tried to find a story with that kind of detail but The Record (the paper I linked to earlier) has a crappy search function.