Landlords in Foreclosure
Your Landlord is Facing Foreclosure
If the person who owns the home that you are renting does not make their mortgage loan payments, they may end up in foreclosure — a lawsuit where their lender attempts to have the court sell off the property to pay off the loan. This can affect you just as much as your landlord, and you may end up named as a party to the lawsuit. Foreclosure timelines vary in length, and can take months or years to complete.
In these situations you are entitled to certain rights and protections as a tenant, and there are steps you can take to best handle this process.
If your landlord is facing foreclosure and you are unsure of what to do next, contact CLSMF for legal advice.
WHAT ARE YOUR RIGHTS?
As the tenant, you do not have to rely only on the information your landlord gives you about the foreclosure.
You have the right to receive copies of all of the court orders and documents that pertain to your landlord’s case.
Once you file a “Notice of Tenancy to let the court know that you are currently living on the property, you will be sent copies of all relevant documents during the foreclosure process. You should do this even if you trust your landlord, or they claim that they have let the court know about your tenancy.
Make sure you read any notices or papers you received from the court.
In the case of landlord foreclosure, Florida renters are protected from immediate eviction by both federal and state laws.
Renters are entitled to at least a 90-day notice to vacate under the federal Protecting Tenants at Foreclosure Act (PTFA). This means that if your landlord’s property is foreclosed on, the new owners must notify you that you may continue to live there for the rest of your lease or 90 days, whichever is greater. There are some exceptions to this rule:
- If the purchaser of the property intends to live there as their primary residence, they may terminate your lease early. They must still give you the minimum 90 days notice to vacate. This exception does not apply to government-subsidized housing (such as Section 8 housing) and does not override any local laws that protect tenants’ lease rights.
- If you are the spouse, child, or parent of the landlord who has been foreclosed on these protections do not apply to you.
- These protections don’t apply if the lease agreement was not an “arm’s length transaction,” meaning the landlord and tenant had a shared interest in the outcome and worked together toward that goal. (This most commonly applies to situations where the landlord and renter are family members, or connected through business or employment.)
- If your rent is substantially less than fair market value these protections do not apply to you.
- Fla. Stat. § 83.561 has been repealed by Florida HB 6033 and what that means is that under Florida Law renters will have the same protections as those under the federal Protecting Tenants at Foreclosure Act (PTFA), which entitles renters to a 90-day notice to vacate and a new owner is obligated to provide a notice that looks similar to this:
- You are hereby notified that your rental agreement is terminated on the date of delivery of this notice, that your occupancy is terminated 90 days following the date of the delivery of this notice, and that I demand possession of the premises on (date). If you do not vacate the premises by that date, I will ask the court for an order allowing me to remove you and your belongings from the premises. You are obligated to pay rent during the 90-day period for any amount that might accrue during that period. Your rent must be delivered to (landlord’s name and address) .
The 90 day notice requirement does not apply if:
- If you are the spouse, child, or parent of the landlord who has been foreclosed on;
- If the lease agreement was not an “arm’s length transaction,” meaning the landlord and tenant had a shared interest in the outcome and worked together toward that goal (This most commonly applies to situations where the landlord and renter are family members, or connected through business or employment.); or
- If your rent is substantially less than fair market value.
If you do not leave by the date on the notice, the new owners may file a “Motion for Writ of Possession.” A sheriff will serve you with a 24-hour notice to leave the rental property, after which your landlord may change the locks and dispose of your property.
You do NOT lose the rights afforded to all tenants, such as uninterrupted utilities or access to your home, during your landlord’s foreclosure process or during the 90-day window to vacate.
To learn more about your rights and protections as a renter, read CLSMF’s Renter’s Rights and Evictions page.
WHAT DO YOU NEED TO DO?
At the beginning of a foreclosure lawsuit a sheriff or process server will deliver (or “serve”) the foreclosure papers. As the person living in the residence, you may be served the foreclosure papers and you may also be a named party to the lawsuit. The papers will include a Summons instructing you to file a response with the court.
In order to notify the court that you are living on the property and would like to remain informed during the foreclosure process, you will need to file a “Notice of Tenancy” with the Clerk of Courts in the county where the foreclosure is taking place. Your written Notice of Tenancy should include:
- Your name, address, and contact information;
- Your monthly rent amount;
- When your lease expires;
- Whether you are the spouse, child, or parent of the landlord who has been foreclosed on;
- Whether your lease agreement was an arm’s length transaction or not;
- Whether your rent payment is substantially less than fair market value; and
- If you have government subsidized housing (such as a Section 8 voucher).
Legal Services of Greater Miami, Inc. has a good example of what this notice should look like in their “What to Do When Your Landlord Is in Foreclosure” brochure. While the heading and circuit court are specific to the Miami-Dade area, their sample form shows which information you will want to include. You can find the brochure here: https://docs.wixstatic.com/ugd/e55b8c_152dd029f1da4088a387a589165300e0.pdf
While the Notice of Tenancy will entitle you to copies of documents or court orders, it is best to stay updated about what is happening by checking the foreclosure status online. You can get status updates by going to the website for the Clerk of Courts that has jurisdiction over the case.
Here are some terms to be aware of when looking at status updates:
- Final Judgement — Your landlord has lost their foreclosure case; a sale date will generally be included in the final judgement.
- Sale Date — When the court will auction off the property. This date is subject to change.
- Certificate of Title — The property has officially been sold to new owners.
Your landlord’s possible foreclosure does not affect your own responsibility to pay rent on time.
You must continue to pay rent to your current landlord and abide by the terms of your lease while the lawsuit is ongoing.
Do not pay your old landlord once the foreclosure is finalized and the house has been sold. Continue to save your money until you have made contact with the new owner — rent payments for however long you remain in the home will now go to them. Always ask for proof of ownership before making any payments.
In some cases, such as multi-family apartment buildings or housing complexes, the mortgage lender will have a clause in their contract that lets them collect rent directly from tenants if your landlord stops making mortgage payments. In these situations a judge will appoint a “receiver” to make collections. Not all foreclosure cases will involve a receiver, so make sure to verify that a court order has been issued before making any payments to anyone claiming to be a receiver.
If you do not pay timely rent to the relevant party, they may file a “Motion for Writ of Possession.” A sheriff will serve you with a 24-hour notice to leave the rental property, after which your landlord may change the locks and dispose of your property.
WHAT TO CONSIDER BEFORE TAKING ACTION?
Once the property is sold, the new owner may be interested in keeping you as a tenant under similar terms to those you had with your old landlord.
You are under no obligation to sign a new lease with the new owner. Only do so if it makes sense to you.
Only sign a lease with the owner after they have shown you proof of ownership of the property, such as the Certificate of Title.
The new owner might offer you money to move out before your lease, or 90-day window to vacate, is up. This is commonly called “cash for keys.”
You should not feel pressured to accept a “cash for keys” agreement, and should only sign one if you understand and agree with every part of it.
Make sure any agreements are in writing and save copies for your own records.