What are my rights as a tenant in foreclosure?

UPDATED: Jan 18, 2011

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What are my rights as a tenant in foreclosure?

My landlord passed away 2 months ago. We have been paying his aunt the rent since then. Today I received a summons to court about foreclosure on the property. From what I can find out the property was sold 10 days ago. The whole time the aunt has been telling us that she was in contact with the bank and was trying to take over the property. When I asked her about it after receiving the summons, she said that she had not been notified of any foreclosure. The court date is in about 4 weeks and I have been informed that our eviction could occur 10 days after the court date, and that it was up to the judge if we would have more time. I have receipts showing that we paid rent. What do we do? We were planning to buy a house but we would need time to get through the closing, etc.

Asked on January 18, 2011 under Real Estate Law, Tennessee


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

First of all, federal law gives some rights and protection to a tenant in the event that their rental unit is foreclosed upon. The “Protecting Tenants at Foreclosure Act” requires that when a home goes into foreclosure, tenants who have a written lease can continue to occupy the home until the end of the lease period, or 90 days, whichever is longer. The only exception would be if the new owner intends to move in and occupy the home as their primary residence. In that case, a 90 day notice to move would apply. Those tenants with a month-to-month lease, or no lease at all, have to be given at least 90 days notice to move. Additionally, in cases where state law provides more protection than the federal law, the state law applies.

You should be aware however, even if a foreclosure action has already been filed, as long as the landlord remains the owner of record that (is still on the title to the property); a tenant must continue paying rent to them. In some jurisdictions, a tenant may be able to pay their rent to the local clerk of courts, who will deposit the money into a special account. Therefore, a tenant must be careful to find out just when title to the property passes at auction or otherwise. Former landlords have been known to try and continue to collect rent even after they no longer own the property. As a lawful occupant of a property in foreclosure, a tenant should be notified by the mortgage lender as to the sale/transfer date of the property. After this time, the landlord will no longer be the legal owner. A tenant should then be informed where to send their rental payments by the new owner.

Note:  Regarding the return of the security deposit when a property is foreclosed on, unfortunately there may not be much that a tenant can do. Typically, in such a situation, a tenant’s only legal recourse is to sue the landlord in small claims court. Yet, even though they may successfully win a judgment, actually getting the money that they are owed may be much more difficult.

Finally, one bright spot in all of this is that sometimes an incentive can be negotiated between a new owner and a tenant so that the tenant agrees to move out prior to the end of their lease, or 90, which ever applies. This incentive is known as “Cash for Keys”. Basically, the owner will pay a tenant to leave the property early in exchange for a cash payment. The amount and timing of the payment can be worked out on a case-by-case basis.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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