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Maryland Court Affirms Self-Help via Lock-Out but Reverses Conversion
Claim Related to Resident's Belongings
The Maryland court of appeals will not recognize an
impermissible forcible entry when a foreclosure purchaser's lawful possessory
interest in a dwelling is enforced (through lock-out) by means of the common
law remedy of self-help.
In Nickens v. Mount
Vernon Realty Group, LLC (MVRG), 2012 Md. LEXIS 664 (Md. Oct. 19, 2012) [enhanced version available to lexis.com subscribers],
the court rejected Demetrius Nickens' claim that the lower court erred in
holding that the common law right of peaceable self-help permitted MVRG to
enter foreclosed residential property and change the locks while Nickens was out.
Upholding the Remedy
Nickens lived in his parents' home when the home was sold at
a foreclosure sale. MVRG notified Nickens that unless he vacated the house, they
intended to enter and remove his belongings. When Nickens left town, MVRG
entered the unoccupied home, changed the locks, and disposed of Nickens'
Nickens unsuccessfully sued MVRG for forcible entry and
conversion. The court of appeals affirmed in part, holding that:
the long-recognized remedy of
peaceable self-help allows a property owner to use reasonable means to
repossess his, her, or its property from an unlawful possessor of that real
property. Under the well-pleaded facts and reasonable inferences, even viewed in
a light favorable to Nickens in this case, Respondents, as agents of the
successful foreclosure purchaser, employed the peaceable self-help remedy
reasonably when MVRG ... entered the
residential property and changed the locks for the purpose of repossessing the
Prior notice to the unlawful
possessor that repossession of the realty will occur is not required.
Nickens unsuccessfully pointed to a 2008 ordinance (Balt.
City Code Art. 13, § 8B-2) which, he asserted, provided MVRG an exclusive
procedure to possess the property via a writ of possession, notice, and sheriff's
execution. Section 8B-2 did not indicate that all foreclosure purchasers had to
resort to its process exclusively. Rather, the language implied that it was but
another manner by which a foreclosure purchaser could repossess property in
Reversal on the
Nickens' appeal wasn't a total failure. On his conversion
claim, the court reversed because no discovery occurred as to how MVRG, in the
absence of Nickens and in the course of exercising the self-help remedy,
disposed of Nickens' personal belongings. Consequently, there was no adequate
basis from which to conclude that MVRG acted reasonably in disposing of Nickens'
belongings. The court held that:
The foreclosure purchaser and its
agents have the duty to use peaceable and reasonable self-help with "no
more force than necessary" to repossess the real property. Disposition of
the personalty found therein, therefore, is also held to a standard of
reasonableness, and those actors may be liable for the disposition of the
personalty that is not accomplished in a reasonable way.
The court rejected MVRG's assertion that because Nickens was
not in lawful possession of the realty, all of his belongings within the realty
were abandoned and, hence, no conversion occurred, no matter how his belongings
were disposed. The court noted that:
a reasonable inference from the
well-pleaded facts is that Nickens did not manifest an intent to abandon his
belongings in the house simply because he continued his occupancy after the
foreclosure sale became final, or when he notified the Parkses [the owners/employees
of MVRG] that he would be out of town for a period, but would return impliedly.
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