You Can't Lock the Doors! Are Lenders Powerless to Stop Zombie Properties in Lien Theory States?

34 Pages Posted: 9 Aug 2017 Last revised: 27 Dec 2017

See all articles by Timothy Harris

Timothy Harris

Seattle University School of Law

Date Written: May 15, 2017

Abstract

In Jordan v. Nationstar Mortgage, the Washington Supreme Court effectively eliminated a lender’s ability to change the lock on a house after a borrower has defaulted on a loan – even to secure and protect the lender’s interest in the property – regardless of whether such limited entry is contractually permissible or whether the property is vacant. The case represents “a significant development in the law of Washington,” and may reverberate to the many states with lien theory statutes like Washington’s. Jordan may have the unintended consequence of harming lenders, borrowers and neighborhoods by furthering blight, increasing crime, devaluing property and preventing lenders from maintaining vacant and deteriorating homes.

This article analyzes the Jordan case, and looks at how other jurisdictions handle vacant houses in default. Ultimately, the author rejects the court’s reasoning, generally agrees with the dissent’s analysis and advocates for legislative fixes that leave defaulting property owners the right to possess their property after default and prior to foreclosure, while allowing the lender to protect its interest in vacated property and to curb the proliferation of zombie properties.

Keywords: real estate, property, finance, banking, mortgages, foreclosures

JEL Classification: R31, K11, R38

Suggested Citation

Harris, Timothy, You Can't Lock the Doors! Are Lenders Powerless to Stop Zombie Properties in Lien Theory States? (May 15, 2017). Real Property, Probate and Trust Law Journal, Vol. 52, Fall 2017. Available at SSRN: https://ssrn.com/abstract=3014796

Timothy Harris (Contact Author)

Seattle University School of Law ( email )

901 12th Avenue, Sullivan Hall
P.O. Box 222000
Seattle, WA n/a 98122-1090
United States

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