Rights of Tenants When a Landlord is in Foreclosure

Yes. It usually doesn’t happen, but the law allows a foreclosing bank to get a 30-day Writ of Possession against a tenant in a foreclosed property if the bank chooses to do that before a foreclosure sale. A Writ of Possession is a written order from the court that gives the bank or new owner the right to take possession of the rental unit.

After the foreclosure sale, the bank or new owner has to give a “bona fide” tenant a written notice to vacate at least 90 days before it can ask the court for a Writ of Possession as part of the foreclosure case.

A notice to vacate is a letter that tells a tenant that their tenancy is over on a certain date. A Writ of Possession is a written order from the court that gives the bank or new owner the right to take possession of the rental unit.

Contact us for advice if the bank or new owner does not give you (the tenant) written notice to vacate at least 90 days before asking the court for a Writ of Possession.

You are a bona fide tenant if you meet all three of these conditions:

1. You did not own the property and are not the property owner’s child, spouse or parent.
2. You are obligated to pay rent on your own or with the help of a rental subsidy.
3. Before the foreclosure, the rent paid to your landlord was not substantially below the fair market value for the unit.

Yes. The bank or new owner can file a separate eviction case. The bank or new owner must give the tenant a written notice to vacate before it can file an eviction case.

If there is a written lease, the bank or new owner generally must allow a bona fide tenant to occupy the property until the end of the lease term.

If the lease term is ending in less than 90 days, the bank or new owner likely needs to give you notice to vacate at least 90 days before asking for a Writ of Possession. 

If the lease term is ending in more than 90 days, the bank or new owner usually needs to give at least 90 days’ notice and then wait until the end of the lease term.

However, there is one exception to this rule. If the new owner plans to occupy the property as their primary residence, they do not need to wait until the end of the lease term. The new owner can get a Writ of Possession after giving the tenant 90 days’ notice, even if the lease term is not yet over.

Your landlord owns the property and has the right to the rent until there is a foreclosure sale of the building. If you stop paying rent, your landlord can start an eviction case for non-payment of rent. If you need to stop paying rent in order to save money for a move, you should put the money in a separate savings account.

If­ the property is sold, you must pay rent to the bank or new owner of the property. If you don’t know where to send the rent, or the rent is returned to you after you send it, you should put the money in a separate savings account. If you do not pay your rent, you can be evicted.

The short answer is sometimes. But it is not up to you. What happens in a foreclosure depends on the decisions of the landlord, the bank and sometimes the court. Unless they buy the building, tenants do not have any ability to change the outcome of a foreclosure. Here are some of the things that could happen after a foreclosure is filed:

• The landlord could “redeem” the building from the bank by paying the whole amount due. That ends the foreclosure and the landlord is still the landlord.
• The landlord may try to sell the building to pay off the bank. That ends the foreclosure, but there is a new landlord.
• The bank could try to make all the tenants leave before a foreclosure sale so that the buyer gets an empty building.
• The bank could end up being the buyer at a foreclosure sale. The bank could decide to manage the building so that the tenants can stay. Or the bank could make all or some of the tenants leave with at least 90 days’ notice.
• Someone else may buy the building. If the new owner is going to live in your unit as a primary residence, they do not need to let you stay until the end of your lease term. However, they need to give you 90 days’ written notice before asking for a Writ of Possession.

If you want to leave before your rental agreement time is up, be sure to give 30 days’ notice to your landlord. It is a risk because if you do not stay until the end of your rental agreement, your landlord could sue you for the rent until the end of the rental agreement.

Normally, you are entitled to get your security deposit back within 14 days of when you move out. Foreclosure is not normal because during the foreclosure process the title owner of the property can change, and the foreclosing bank has the right to send tenants a notice to leave. So there is no sure way of getting your deposit back.

Ask your landlord for your security deposit back when you learn of the foreclosure. Keep it in a separate account. After foreclosure, if there is a new owner asking for a security deposit, you can give it to them.

If your landlord does not give you the security deposit, write a letter to the court asking for an order that the landlord selling the property put the security deposit into a special account that will be transferred to the buyer after sale of the building. Send a copy of your letter to all the parties to the foreclosure action.