By: Clark, Campbell, Lancaster & Munson, P.A.
Q: Are tenants protected at foreclosure?
A: Yes, but right now only limitedly by a recent state law. Previously, the federal Protecting Tenants at Foreclosure Act prevented most banks or buyers obtaining a property through foreclosure from evicting rent-paying tenants without providing 90 days’ notice. And unless the buyer intended to occupy the home, he would have to respect the lease. That law expired at the end of 2014, and for the first five months of this year, Florida (like about half the states) had virtually no protection for tenants at foreclosure.
As of June 2, 2015, Florida enacted a law that requires merely 30 days’ notice to so-called “bona fide tenants” before removal after a foreclosure, regardless of the lease and regardless of whether the foreclosure buyer intends to occupy the property. A bona fide tenant, under both the expired federal law and the current Florida law, is better known as an “arms’ length tenant”, because he cannot be the prior homeowner’s child, spouse or parent and he needs to be paying at or near market value rent. Even though the new owner need not respect the lease, he must respect other tenant rights, such as the prohibition against the landlord locking out the tenant, turning off water or removing doors. Once the 30 days expires, a mere affidavit in the foreclosure action can be enough to get the tenant removed.
In short, Florida has created a 30-day notice requirement for tenants who are truly at arms’ length with their landlords and were occupying the premises before the foreclosure buyer obtained title. This is far short of the intended protections of the expired federal Act and puts us short of the protections of approximately a dozen other states. However, notably, the protections under Florida law appear to apply to other lien foreclosures in addition to just the traditional “federally related mortgage loan” covered by the federal Act.
Although the more protective federal Act has expired, house and senate bills have been proposed this year to reenact the law.
The October 22nd edition of “The Law” will cover selecting the right attorney and title company services when dealing with real estate that is subject to a last will and testament.
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