Renters get relief from foreclosure

• Marcie Geffner
• On 6:00 am EST, Monday November 2, 2009

A new federal law offers renters more protection from eviction if their landlord loses the property through foreclosure. The law has some fuzzy requirements, but should be a boon to renters who otherwise might have been evicted with little or no notice.

"The fundamental purpose of the Protecting Tenants at Foreclosure Act is to ensure that tenants facing eviction from a foreclosed property have adequate time to find alternative housing. To that end, the law establishes a minimum time period that the tenant can remain in a foreclosed property before eviction," a Federal Reserve memorandum states.

The national foreclosure crisis has not been kind to renters, despite their seeming bystander status. Indeed, the National Low Income Housing Coalition, or NLIHC, in Washington, D.C., has estimated that some 40 percent of households that have lost their home due to foreclosure have been renters.

The new law should provide some relief from immediate evictions, according to NLIHC President Sheila Crowley.

"This bill brings long overdue relief for the most blameless victims of the foreclosure crisis -- the families who, after paying their rent each month, are suddenly told they must move out of the homes because their landlords have been foreclosed on," Crowley said in a statement.

Renters will get 90 days' notice

The new law allows tenants who have a lease to remain in their home until the end of the lease period, unless a new owner purchases the home at a foreclosure sale and intends to occupy it as a personal residence. In that case, the renter can be evicted with 90 days' notice even if a longer-term lease is in force.

A rare but potentially important exception occurs if the renter signed the lease before the owner obtained the foreclosed loan. In that case, the lease will still "survive" the foreclosure, according to Janet Portman, an attorney and author of "Every Tenant's Legal Guide," published by Nolo Press in Berkeley, Calif.

Tenants who don't have a lease also are entitled to 90 days' notice prior to eviction under the new law.

Technically, the law applies only to "any foreclosure on a federally related mortgage loan." That requirement shouldn't be a burden for tenants because, as Portman explains, the definition of "federally related" encompasses virtually all loans.

The law became effective May 20 and is scheduled to sunset Dec. 31, 2012.

Only 'bona fide' renters are protected

The law protects only a bona fide lease or tenancy, which is defined as a situation that meets three criteria:

• The renter may not be the former owner of the home or the former owner's spouse, child or parent.
• The terms of the rental must be at arm's length between the landlord and renter.
• The rent cannot be substantially less than the fair-market rent, unless the rent is subject to a government reduction or subsidy.

The arm's-length and fair-market rent requirements "are designed to prevent a sweetheart deal" between a defaulting landlord-owner and a renter whom the landlord wanted to protect from eviction after the foreclosure, Portman says. For example, if a landlord and renter signed a two-year lease at a very favorable rent just prior to a foreclosure, that likely wouldn't meet the bona fide requirement.

Broken lease can lead to lawsuit

Renters who have a lease and are evicted may be able to bring a breach-of-contract lawsuit against the former landlord to recoup the costs of their forced move, according to Portman.

"You go to court and say, 'We had a deal, and he didn't deliver,'" Portman says. "The guy may be long gone. But if you get a judgment, that's good for many years and you could probably eventually collect on it."

New law doesn't affect rents, deposits

The new law doesn't pre-empt any state or local laws. Instead, it specifies that it won't affect "the requirements ... of any state or local law that provides longer time periods or other additional protections for tenants."

State laws apply to most landlord-tenant issues that are beyond the scope of federal law. Examples include prepayment of last month's rent and reimbursement of a security deposit. Neither of those issues is mentioned in the new law.

"Many states, including California, protect the tenant at any cost. They say basically that it is up to the buyer and seller, or in this case, the bank and the (former) owner, to figure out how to (handle those sums)," Portman says.

The bottom line is that landlords and renters have new rights and responsibilities in foreclosure situations. While renters may face challenges in their attempts to exercise those rights, knowledge and action can prevail.

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