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Tenant Eviction in Foreclosure: What Are Your Rights?

Senior adult worries over eviction notice while sitting on a living room sofa.  A pile of foreclosure paperwork and a 90-day written notice are on the coffee table.

When hard times cause a landlord to default on their loan, their rental unit could be foreclosed. The bank can recoup the past due loan payments by taking title to the home. That means the bank becomes the new landlord. But banks aren't in the rental business. They will typically move to sell the foreclosed property as soon as possible. This results in quickly evicting anyone living on the property -- usually with little warning. Here's how it happens and what renters-in-foreclosure can do about it.

If Your Landlord Is in Default

Sometimes, landlords can't cover the mortgage payments on the property they rent out to tenants. This can happen for many reasons, such as:

  • Insolvency or an inability to balance expenses
  • The landlord may have taken out too big of a loan in the first place
  • There is a second or even third mortgage on the property that the landlord is behind in paying off

Whatever the cause, if the bank begins foreclosure proceedings on the property, it will likely attempt to evict any tenant renting there.

Meet Your New Landlord: The Bank

Banks are not in the business of renting to consumers. This will become immediately apparent when they become your new landlord. The bank has two potential decisions it can make:

  • Hire a managing company to run the property, maintain the building, and collect each month's rent
  • Sell the property

When a Bank Hires a Managing Company

This may be a smarter long-term decision for banks. A bank could manage the property until better times. Then, they could recover any potential losses if the value of the property drops below the amount the bank initially loaned for its purchase. Holding onto the property also prevents further rental property value deterioration by preventing hard-hit areas from becoming ghost towns because of foreclosures.

As smart as it may be in the long run, however, this is unlikely. Especially during a crisis, banks want certainty and cash in hand. If the landlord could not cover costs through rent, the bank probably considers itself even less likely to have this ability.

If this happens, expect poor service. The bank is mostly concerned with money, not happy tenants.

When a Bank Sells a Property

Often, a tenant will not know that the property has been taken to a foreclosure sale. This means that overnight, you'll get a notice of a new owner and potentially an eviction notice. Suppose you refuse to leave after the expiration of the notice period and face eviction proceedings. Without a valid defense, expect a lawsuit that you likely can't win and isn't worth the risk. Having an eviction on your record can seriously harm your ability to find future housing, regardless of whose fault the situation was.

Some banks may offer "cash for keys" programs designed to get you out of the property as quickly as possible. This may not be a good decision to accept if you're a protected tenant, such as a:

  • Section 8 tenant
  • Elderly, disabled, or active military duty tenant
  • Rent-controlled tenant

In these situations, an eviction case may be stayed (delayed) due to an undue hardship recognized by local ordinances (like housing codes) or a court. While a landlord can certainly evict you for good cause, such as nonpayment of rent, it's harder for them to force you to vacate when you're not at fault. Protected tenants often cannot be evicted by the new owners unless they:

  • Fail to pay the amount of rent due
  • Violate a material term of their lease

Losing Your Lease Upon Foreclosure

When the property is foreclosed, in most circumstances, it also ends your lease term. If the mortgage was signed before your lease, the foreclosure usually wipes out your lease. Sadly, it doesn't matter if you still have 10 months left on your written lease agreement. A lease is usually subordinate to a mortgage that predates it. Under some state laws, however, the foreclosing bank may have to delay the eviction process for a set amount of time.

Fortunately, that doesn't necessarily mean you have to leave immediately. The new owner must still give you proper written notice of the lease termination. But your occupancy doesn't necessarily end even if you get a notice to quit by certified mail. The bank may also need to initiate unlawful detainer proceedings, allowing you to voice your undue hardships in a court hearing.

Mortgage Reform and Anti-Predatory Lending Act

In 2009, Congress passed the Mortgage Reform and Anti-Predatory Lending Act in the wake of the subprime mortgage crisis. Federal law now typically requires a 90-day notice to tenants.

Before, tenants had 30 days' notice at most, with some tenants receiving far less notice. Of course, state-level landlord/tenant laws may provide greater protection. For example, consider an eviction lawsuit involving the bank engaging in illegal activities. They may have failed to give proper notice under state law. At your eviction hearing, you can avoid a default judgment by appearing personally to voice your grievance with the bank.

The Protecting Tenants at Foreclosure Act

The Protecting Tenants at Foreclosure Act (PTFA) was signed in 2009 and revived on June 23, 2018. It may also protect your lease, but state laws always take precedence. The Act requires:

  • 90-day notice before an eviction
  • Honoring bona fide leases or tenancy on the property

You can learn more legal information about the PTFA through the Comptroller's Handbook.

What Are Your Rights?

You generally can't prevent the foreclosure process from wiping out your rental agreement. The bank may get a writ of possession from a court, allowing them to kick you out. However, that lease was a contract, so the landlord who signed it is still bound by its terms. If you sue the former owner, they may be held accountable for taking away the place where you live.

Almost all leases contain a "covenant of quiet enjoyment," which is a material term of the contract. A landlord who causes a tenant eviction by defaulting on their mortgage may be in violation of the tenant's rights.

Small claims court is the best place to get a court order, and you can try to recoup economic losses such as:

  • Moving expenses
  • Apartment searching costs
  • The difference between your new and old rent
  • Application fees
  • Other reasonable costs associated with relocating

Be aware the landlord is not likely to be bursting with available cash. A judgment against your landlord is good for a long time, however, and if you pursue it diligently, you may eventually be able to recover your costs. Depending on your state, you may need to renew a judgment at regular intervals.

Get Legal Aid About Tenant Eviction in Foreclosure by Legal Advice From a Lawyer

Your home is where your heart is, but what if the property owner goes into default? The bank clearly isn't interested in where your heart lies. Self-help can only get you so far, especially when your health and safety are on the line.

You can learn about the law by seeking the legal services of an experienced landlord-tenant lawyer in your area. They can provide legal assistance and help you understand what legal protections are available to you.

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