Renting Out A Property In Foreclosure

Last updated on: July 3, 2023

Renting out a property in foreclosure involves leasing a property that is undergoing repossession by the lender due to the homeowner’s inability to make mortgage payments. This option allows homeowners to generate income and potentially cover the mortgage while retaining ownership rights. It can also help in deterring vandalism and maintaining the property’s condition. However, navigating the legal aspects and understanding the obligations associated with renting out a property in foreclosure is crucial.

If you are a property owner facing foreclosure and considering renting out your property, consulting with an experienced Florida foreclosure lawyer is crucial. Property owners may be required to make monthly payments during foreclosure, and an attorney can provide guidance on this matter. At Charlip Law Group, our lawyers can help you navigate the complexities, assist you in making informed decisions, and ensure compliance with regulations. Call us at (305) 354-9313 to schedule a free consultation.

First, the landlord should know that the tenant will be informed of the pending foreclosure by being served with the court papers.  This notice to the tenant is to allow her to file her own answer to the court providing the details of their rental agreement or lease with the landlord, and to inform the court when the lease would terminate.  This notice also provides the tenant with an opportunity to decide whether or not to stay despite the existence of a lease.  If the tenant wants to leave before the end of her lease, the tenant may do so without penalty by notifying the landlord that she is leaving due to the fact that the home is in foreclosure.

The tenant should continue to pay rent until the homeowner loses possession of the property.  Some tenants may feel cheated if they are unaware of the foreclosure and continue to pay rent only to discover they are about to be evicted.  A property owner who is early on in the foreclosure process may choose to tell the tenant that the home is in foreclosure in order to prepare them for the move.  However, this may also make the tenant decide not to pay rent because the owner is not paying their mortgage.  If you are in this situation, you should discuss how to proceed with an experienced attorney.  After the property has been legally transferred to the mortgage lender or another buyer, the property owner should stop accepting rental payments associated with the home.

Even though the tenant may leave the property after being served with the court papers indicating the property is in foreclosure, this may not be the only remedy available to the tenant.  If she could have remained on the property under the terms of the rental agreement, then she may sue the landlord for any security deposit, moving costs, and other costs associated with having to move out early from the property.  This possibility may be increased in cases where the tenant rented the property closer to the end of the foreclosure period and received no notice that the property was in foreclosure.

Renting Out A Property In Foreclosure Description
Notice of Foreclosure Tenant is served court papers informing them of the pending foreclosure, allowing them to respond and provide lease details. Tenant can choose to stay or leave.
Early Lease Termination Tenant can leave without penalty by notifying the landlord if they want to end the lease early due to foreclosure.
Rent Payment Tenant should continue paying rent until the homeowner loses possession. Property owner should stop accepting rent after legal transfer of property.
Tenant’s Remedies If the tenant could have stayed based on the lease and leaves after receiving foreclosure notice, they may sue the landlord for security deposit, moving costs, and related expenses. Particularly relevant if tenant rented near foreclosure end without notice.

Protecting Tenants at Foreclosure Act

The Protecting Tenants at Foreclosure Act is a federal law that serves to provide tenants, who face eviction due to the foreclosure of the properties they inhabit, ample time to seek alternative accommodation. This legislation mandates a minimum duration for a tenant to stay in a foreclosed property prior to eviction. In Florida, if a foreclosure takes place, the new owner must respect the current lease agreement with the tenant, enabling them to stay in the property until the lease term ends, unless specific conditions are met. This act aims to ensure that tenants in Florida have enough time to secure alternative housing and prevent sudden displacement.

In situations where a credit union gains ownership of a rental property following foreclosure, the credit union has specific obligations as the new property owner. These include:

  • Bona fide tenants must be provided with a notice period of 90 days before eviction; and
  • Bona fide tenants with leases are permitted to occupy the property until the completion of the lease term. However, if the unit is sold to a purchaser, the lease can be terminated by providing a 90-day notice.

A lease or tenancy is regarded as bona fide if:

  • The tenant isn’t the borrower, or the borrower’s parent, spouse, or child.
  • The lease or tenancy originated from an arms-length transaction.
  • The lease or tenancy must involve rent that is reasonably close to the fair market rate, without a substantial reduction or subsidy from federal, state, or local sources.
Miami foreclosure lawyer

The law does not apply to tenants facing eviction in properties that are not undergoing foreclosure. It also does not provide protections for tenants with fraudulent leases, tenants who enter into lease agreements after a foreclosure sale, or homeowners who are in the process of foreclosure. This law doesn’t supersede any state or local law that offers longer time periods or additional safeguards for tenants.

Credit unions need to be conscious of their duties under the Protecting Tenants at Foreclosure Act of 2009, and should establish guidelines and processes to ensure adherence to this law.

For more information, it is still important to consult with a Florida foreclosure attorney who has experience in landlord-tenant law and foreclosure proceedings. Charlip Law Group can provide guidance and advice tailored to your situation and ensure that you fully understand your rights and obligations. Schedule a consultation today to ensure you understand and comply with the obligations outlined in the Protecting Tenants at Foreclosure Act.

Contact An Experienced Foreclosure Defense Attorney

If you are facing foreclosure on your primary or rental property, it is important to seek an experienced foreclosure defense attorney to determine what rights and options you have.  Contact the North Miami foreclosure attorneys at Charlip Law Group, L.C. for a consultation on your case.

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