What Can I Take During Foreclosure?

You can take your non-real estate property after a foreclosure.

When a mortgage lender or lien creditor forecloses on your home or other real estate, the lender forces the sale of you property from underneath you. After the foreclosure sale the lender or the purchaser at the foreclosure sale will have the right to evict you from the property. Generally, when you leave the property you can take all your personal property that is not a permanent fixture to the land.

Mortgage Contract

Before you proceed with removing any property from your house or real estate, you should first read through your mortgage loan documents, or mortgage contract. Most mortgage contracts provide that the lender has the right to foreclose on the real estate, but not any personal property located on the real estate. Ultimately, though, a mortgage is an individual contract between you and the lender, so the terms of your specific contract may give you more direction as to what property you have the right to take after foreclosure.

Fixtures

The general rule is that you must leave any fixtures on the foreclosed real estate. A fixture is a man-made object that has been permanently located or attached to the land. For example, the home and any other buildings on the land are fixtures. The lender's lien on your real estate includes a lien on all fixtures attached to the real estate.

Land

It seems obvious enough, but you must leave the land to the mortgage lender after foreclosure. The land includes all water, soil, mineral and other natural objects located in the land. For example, you can't dig up and take with you any landscaping rocks located on the property. Similarly, you can't take trees or plants that have become a part of the land.

Personal Property

Absent a specific provision in your mortgage contract to the contrary, what you can take with you after foreclosure is any personal property located on, but not permanently attached to, the land. This includes all your household furnishings, your cars, and yard equipment. The general rule is that if you can easily remove it from the property, you have the right to take it. A gray area in the law is whether you can take appliances from the home. In most cases, the answer is yes, you can take appliances that are not permanently attached to the property. A built-in oven or dishwasher, for example, should probably be left in its place, but a tabletop microwave or free-standing refrigerator are probably yours to take with you. Ultimately, the question is whether the foreclosure purchaser would be willing to sue you to try and recover the property, and in most cases, it wouldn't make sense for the purchaser to file a lawsuit over appliances taken from the property, especially when the law is not entirely clear on whether you have the right to take those appliances in the first place.

References

• "Foreclosure Law 101"; Dr. Vook Ph. D; 2011