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Removing a Homeowner After a Non-Judicial Foreclosure

By Lane V. Erickson, Attorney

You are a holder of a mortgage on real property located in Idaho. The borrower who owns the Home Depot that and making their regular payments to you. You did everything right and doing a non-judicial foreclosure under Idaho law. A trustee’s deed has been issued naming you as the titled owner to the property. However, the homeowner refuses to leave the property. What can you do now to remove the homeowner after completing your non-judicial foreclosure?

Idaho law provides a mechanism for removing a homeowner once a non-judicial foreclosure has been completed. This process is called an ejectment. Ejectment requires proof of (1) ownership, (2) possession by the defendants, and (3) refusal of the defendants to surrender possession. Pro Indiviso, Inc. v. Mid-Mile Holding Trust, 131 Idaho 741, 745, 963 P.2d 1178, 1182 (1998). Further, a suit for ejectment is equitable in nature and, therefore, that there is no entitlement to a jury trial on the ejectment claim.  Ada County Highway Dist. v. Total Success Invs., LLC, 145 Idaho 360, 369, 179 P.3d 323, 332 (2008).

According to applicable Idaho law, “[t]he purchaser at the trustee’s sale shall be entitled to possession of the property on the tenth day following the sale, and any persons remaining in possession thereafter under any interest except one prior to the deed of trust shall be deemed to be tenants at sufferance.”  Idaho Code § 45-1506(11)(italics added).  The applicable statute concerning a “tenant at sufferance” states that in the event the person in possession is a tenant at sufferance pursuant to subsection (11) of section 45-1506, Idaho Code, it is sufficient to state in a complaint:

(1)       A description of the premises with convenient certainty;

(2)       That the defendant is in possession of the premises;

(3)       That the defendant holds the premises, and is in default of the payment of rent or that the landlord has reasonable grounds to believe that any person is, or has been, engaged in the unlawful delivery, production or use of a controlled substance on the leased premises during the term for which the premises are let to the tenant;

(4)       That all notices required by law have been served upon the defendant in the required manner or no notice is required because the defendant is a tenant at sufferance pursuant to subsection (11) of section 45-1506, Idaho Code; and

(5)       That the plaintiff is entitled to the possession of the premises.

See Idaho Code § 6-310

If you have questions or are concerned about removing a homeowner once a non-judicial foreclosure is completed, we can help.  Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Landlord and Tenant Law and Real Estate attorneys in Idaho. You can also email Lane Erickson directly at  We will answer your Idaho Landlord and Tenant Law and Real Estate questions and will help you solve your Idaho Landlord and Tenant Law and Real Estate needs.


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