Avoiding properties in risk

Often, the best way to solve a foreclosure rental problem is to avoid it all together. For the property you want to rent, learn how to find out if the property is in foreclosure.

Protections for renters in foreclosures

Learn what rights you have as a renter when your landlord goes into foreclosure:

• Florida Legal Services, Inc. notice of 2009 Foreclosure Act
• Know Your Rights Renters in Foreclosure handbook
• Protection for Renters in Foreclosure

For more advice, visit the Legal Services of Greater Miami website.

Are you being served?

If a foreclosure is filed against your landlord, as a tenant living in the property, you will usually be served with the foreclosure lawsuit.  Either the Sheriff or a process server will hand you a copy of the lawsuit. As a tenant, you are a party to the foreclosure, but the foreclosure complaint will refer to you as the "unknown tenant" or "John/Jane Doe."

If you receive a foreclosure complaint, you should contact your landlord to find out what they intend to do about the foreclosure. Many times, after a foreclosure is filed, the owner pays the mortgage company enough money to stop the foreclosure or files bankruptcy. If the landlord does this, the foreclosure should stop or be dismissed. Even if your landlord tells you they will stop the foreclosure, you should still file an Answer in the foreclosure lawsuit.

For more information about how to do this, visit the Legal Services of Greater Miami to download the How to File an Answer to a Lawsuit  brochure.

In the Answer, explain that:

• You live in the property
• You rent the property
• If you have a lease, say this in your Answer
• The date your lease expires
• Attach a copy of the lease to the Answer

If you file an Answer, it will tell the judge and the mortgage company that a tenant is living in the property. You will also be notified if any hearings are scheduled in the case. If you do not file an Answer, you may not receive any notices about the foreclosure lawsuit, and you will not know what is happening in the case.

If your landlord tells you that she is not going to be able to stop the foreclosure, or if you cannot find your landlord, you should file an Answer in the foreclosure and begin looking for a new place to live. Legally, you must continue to pay rent to your landlord during the foreclosure process.

If the landlord did not pay the mortgage and you want to move out, you can send a letter to the landlord explaining that you are terminating your rental agreement in 7 days because she did not pay the mortgage. You may also have other claims against the landlord, but you should consult an attorney before you take any legal action.

Forced Moves

On May 20, 2009, President Obama signed the Protecting Tenants in Foreclosure Act. This changed the law regarding tenants in foreclosure. As with any new law, there are some questions about what the new law means. This information is based on our reading of the new law and could change once judges rule on the new law.

If your lease has expired or you don’t have a lease, the new owner must give you a written 90-day Notice to Vacate. If you have a lease, the new owner must allow you to stay until the end of the lease before you can be evicted. Even if you have a lease, the landlord can make you move sooner if the landlord wants to live in the property. But, he must still give you a 90 day Notice to Vacate.

If you have a Section 8 housing voucher, the new owner must accept the Section 8 voucher and it will continue to be paid by the Housing Authority.

If the Notice to Vacate expires and you have not moved out, we believe the new owner must file an eviction to have you removed, just as any other landlord would do. Even though we interpret the new law to require the owner to file a separate eviction action, there are no decisions on this yet.

Therefore, the new owner may ask the foreclosure judge for a Writ of Possession without filing an eviction. The Writ of Possession is an order telling the Sheriff to remove you and your belongings from the property. If you are still living in the property and the new owner schedules a hearing asking for a Writ of Possession, it is very important that you attend the hearing so you can tell the Judge that you are a tenant living in the property and the new owner must file an eviction case.

Staying in place

Sometimes, the new owner will ask if you want to keep living in the property. If this happens, you must make sure that the person who contacts you is really the new owner. You should ask for proof that he is the new owner before you pay him any rent. If you cannot reach an agreement, the new owner cannot force you out by changing the locks or turning off the utilities.

For more information and help, visit the Legal Services of Greater Miami, Inc.