When homeowners face foreclosure on a property they are renting out, tenants often begin to
worry about the status of their home. Will the landlord be able to avoid foreclosure? Should the tenants stop paying rent? Will the new owner at the auction evict them, or will the purchaser honor the lease agreement? Unfortunately, many of these questions exist due to differences in the treatment of tenants under state law.
Many times, the first action a purchaser at a foreclosure auction takes is to begin the process of evicting former owners or tenants, whether this action is legal or not. In many cases, although it is not legal, the new owners will pursue this anyway in their effort to take possession of the property as quickly as possible. If this happens, it is usually up to the tenants to assert their rights under the lease.
Much of the confusion rests on two related issues. The first is that tenants’ rights after a foreclosure are defined under state law, and each state will treat the issue slightly differently. Another issue is that tenants are the group most forgotten about in all of the efforts and discussion to help homeowners stop foreclosure. Protecting the rights of the renter is far down the list of priorities for most politicians attempting to help homeowners save their homes.
Tenants in different situations will have different rights. State law plays a large role, as does the nature of the lease itself. For instance, a lease that was entered into before the mortgage was placed on the property will usually survive a foreclosure. The lease existed before the mortgage was entered into, while the mortgage was in default, and during the foreclosure process. A purchaser at auction will not receive a greater interest in the property than existed before the mortgage.
There are two different views on the much more common issue of a lease entered into after a mortgage is executed. The majority opinion is that a lease will survive foreclosure if the lender is on notice that the tenancy exists. The exception to this rule is if the foreclosing lender makes the tenants are party to the foreclosure lawsuit; in this case, the lease may be exterminated after the foreclosure is completed.
Another view on this issue is that the foreclosure terminates the lease whether or not the tenants are made a party to the foreclosure lawsuit. In cases of nonjudicial foreclosure through a power of sale clause, most courts have held that the foreclosure extinguishes the tenants’ rights in the property under the lease agreement. This gives tenants very few rights to defend their interest in the home.
One issue that homeowners, lenders, and tenants need to be aware of is that of the notice requirement mentioned above. If the lender has notice of the lease agreement, either actual or constructive, and does not include the tenants in the foreclosure proceedings, the lease will most likely survive the foreclosure auction. This makes the notice extremely important for tenants, foreclosing lenders, and purchasers at auction.
A number of different documents or actions can provide notice to the lender of the lease agreement. A recorded lease provides notice, for example. Also, if it should be apparent that tenants are living in the property, the lender may have the responsibility of investigating to determine the tenants’ claims. An apartment building or property with more than one unit may also provide notice just by the nature of the building itself.
Homeowners are usually somewhat lacking in their efforts to help tenants deal with the foreclosure process. This often leaves renters on their own to figure out how to respond, and many end up not paying rent and being evicted quickly after a foreclosure auction. Unfortunately, this is often the worst possible scenario, and may not even be legal. But too few tenants know their rights after the home they are renting is foreclosed.
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