Renters Left Hanging in the Middle in Foreclosure Proceedings

With the current wave of foreclosures, that we hope will diminish after the recently announced bailouts, many renters are finding themselves in the middle between lenders and their landlord; who is now the foreclosed on owner. They are finding themselves homeless, like the Smiths, after their cash-strapped landlord stopped making mortgage payments and their houses, condos, townhouses or apartment buildings were foreclosed upon, even though they have been making their monthly rent payments.

The California Apartment Association, the state's largest organization of rental property owners, reported that nearly a quarter of all foreclosed single-family residences are renter occupied. And the number of renters trapped in the foreclosure debacle in duplexes and other multi-unit buildings is considerably higher.  Total California foreclosures of single-family homes statewide rose more than 400 percent to a record 31,676 in the fourth quarter of 2007 from a year earlier and has been rising ever since. 

The Smiths received notice last month, when a Trustee Sales Notice was posted on the front door of their townhouse, after their landlord had missed 6-months of mortgage payments and the property was foreclosed upon.  And this seems to be the way most tenants are getting their notifications; inciting a sense of panic and feelings of insult, betrayal and lack of control.

For many people, this can mean even steeper rents on the horizon because the wave of foreclosures has created greater demand in the rental housing market -- a blessing to landlords who are not having foreclosure problems, but also leaves the door open for some gauging. And invariably, these situations mean a total loss of deposits paid by renters, so it is generally suggested that renters stop paying rent as soon as they are made aware of foreclosure proceedings and notice definitely of an impending sale.

State and local officials say many evictions could be avoided or at least made less painful if people knew the legal protections available to them. However, few owners, lenders and property managers make such information available during the eviction process.

This entire experience can be terrifying!! "It's something a number of jurisdictions have been discussing because it's a growing problem.", says Michaelyn Jones, general counsel to the Santa Monica Rent Control Agency, which oversees some of California's toughest rent-control rules.

Many foreclosed properties were purchased by real-estate speculators or novice investors taking advantage of dirt-cheap loans and rising property values, who subsequently rented them to tenants before falling behind on mortgage payments.  Plus now there is a newly reported scam whereby some owners, knowing they are on the road to pending foreclosure are renting their properties anyway or again, right before the Trustee Sale, and then vanishing with what can be a tidy sum, including as much as first and last month’s rent, a security deposit and sometimes additional cleaning or pet deposits; leaving renters holding the proverbial bag and having to move again.

Some tenants don’t find out that they have to move until they receive a letter from the bank or lender, that has taken the property back, or from the new owner after the Trustee Sale, either in letter form or by a representative showing up at their door, which sometimes includes the offer of an "assistance check" varying in amount from $1000 to $2500, to vacate quickly. In many cases it is to the renters’ benefit to accept this assistance check, which usually includes a warning like: "Please keep in mind that the eviction process has started". 

Offering financial inducements is a common practice when renters are being pressed to vacate a foreclosed-upon property, but there are several factors to weigh. It's called "cash for keys" and can involve payments of up to $2,500, ostensibly to help a tenant resettle but also to get him or her to waive any claims to the rental property.  However in the wake rising foreclosures and rising rents, you now have 60-days from the day you receive official notification to vacate before having to be out or before eviction procedures can begin, giving you 2+ months of rent free living.  So you need to weigh the value of two free months of rent against the amount of the assistance check being offered.  And if you have an active lease in place, that lease could have to be honored.  Be sure to check with Renters Rights and give your options some thought before the representative appears on your doorstep.  Also, if your property has been purchased by a new owner, be sure to ask if you can stay on as a renter.

The Smiths were told that if they didn't agree to the assistance money deal right away, their resettlement money would be slashed in half from the original offer within a week and then to third a week after that. Then it would drop to nothing, and they'd still have to move out.  Sometimes that is enforced and sometimes, if they really want you out, they will work with you and could still get the original offer, but it is a gamble.

Also be wary of your previous landlord trying to collect rent, present or past, (before or after the trustee sale) or asking for a share in the moving assistance money.  Once they have lost title to the property, they have no claim or rights to anything involving their former property.

State officials have said that under California law, existing rental agreements are essentially wiped out when a property is foreclosed upon, but changes and amendments have and are being made daily, so keep checking. A few months ago renters only had 30 days' notice before being evicted; now they have 60.  And those officials also said state law can be trumped by local rent-control statutes, which often provide tenants with more far-reaching protections.  These "just cause" provisions of many municipal rent-control laws limit the ability of landlords to evict tenants, even those on month-to-month leases. They also include cases in situations when ownership of a property changes hands, such as a foreclosure.

However, not all "just cause" provisions are created equal. Some require that a tenant occupy a property for at least two years before an eviction notice is served. Others allow an eviction to proceed if the landlord plans to remove the property from the rental market or have a relative move in.  And, not all rental properties may fall under a city's rent-control protections, allowing state law to apply.

But anyone receiving a notice from a bank or property manager, which is often an assigned realtor, saying their rented home has been foreclosed on should contact City Hall and ask about rent-control rules that may exist in your area and whether your particular property is protected as well as checking with Renters Rights.  Then ask the bank or property manager to specify the legal grounds for the eviction. If nothing else, this could result in a more generous offer of payout to get you moving.

And remember, do your homeworkd and always get everything in writing!!!

By: Marion Algier/Ask Marion

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