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Real Estate Law Articles
With the collapse of the real estate market and the resulting bank
foreclosures on hundreds of thousands of residential rental properties, often,
tenants residing as leaseholders in residential properties become collateral
victims and are forced to vacate their leaseholds, often with minimal
notice.
As a result one of the most frequently asked questions posed to real
estate lawyers today is “What are the rights of a tenant when the property they
are occupying has been foreclosed by the bank?”
In response to this problem, the Obama Administration in a bill
enacted and approved in May of 2009, known as the Protecting Tenants at
Foreclosure Act of 2009 as part of Title VII of the Helping Families Save Their
Homes Act of 2009 and codified at 12 U.S.C. 5220.
Enacted during a period when unprecedented numbers of foreclosures
were occurring across the country, the Act ensures that tenants receive
appropriate notice of foreclosure and are not abruptly displaced.
Under the Act, a lender or other immediate successor-in-interest,
generally, the purchaser who acquires residential real property by virtue of a
foreclosure sale on a federally - related mortgage loan, must provide bona fide
tenants residing in the property with notice to vacate of at least 90 days. 12
U.S.C. 5220 (a)(1)
Moreover, if the tenant in possession has in effect a valid and
existing bona fide lease the purchaser at the foreclosure sale takes the
residential real property subject to any remaining term of the lease.
These provisions, however, do not apply where the purchaser at the
foreclosure sale is not the bank or an investor but a purchaser who intends to
occupy the property as a primary residence.
Additionally, to fall within the act a bona fide lease must be entered
into prior to the date of the notice of foreclosure, which is defined as ‘‘the
date on which complete title to a property has been transferred to a successor
entity or person as a result of an order of a court or pursuant to the
provisions in a mortgage, deed of trust, or security deed.’’
A bona fide lease is one in which: (1) The mortgagor or the child,
spouse, or parent of the mortgagor under the contract is not the tenant; (2)
the lease or tenancy was the result of an arms-length transaction; and (3) the
lease or tenancy requires the receipt of rent that is not substantially less
than fair market rent for the property. 12 U.S.C. 5220 (a)(2)
The protections provided by the Act will be in place till December 31,
2014, when they are set to expire
The law office of Mitchell Reed Sussman & Associates has specialized in real estate, bankruptcy and business litigation for over 30 years. They can be contacted at www.palmspringslitigationattorney.
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With the collapse of the real estate market and the resulting bank
foreclosures on hundreds of thousands of residential rental properties, often,
tenants residing as leaseholders in residential properties become collateral
victims and are forced to vacate their leaseholds, often with minimal
notice.
As a result one of the most frequently asked questions posed to real
estate lawyers today is “What are the rights of a tenant when the property they
are occupying has been foreclosed by the bank?”
In response to this problem, the Obama Administration in a bill
enacted and approved in May of 2009, known as the Protecting Tenants at
Foreclosure Act of 2009 as part of Title VII of the Helping Families Save Their
Homes Act of 2009 and codified at 12 U.S.C. 5220.
Enacted during a period when unprecedented numbers of foreclosures
were occurring across the country, the Act ensures that tenants receive
appropriate notice of foreclosure and are not abruptly displaced.
Under the Act, a lender or other immediate successor-in-interest,
generally, the purchaser who acquires residential real property by virtue of a
foreclosure sale on a federally - related mortgage loan, must provide bona fide
tenants residing in the property with notice to vacate of at least 90 days. 12
U.S.C. 5220 (a)(1)
Moreover, if the tenant in possession has in effect a valid and
existing bona fide lease the purchaser at the foreclosure sale takes the
residential real property subject to any remaining term of the lease.
These provisions, however, do not apply where the purchaser at the
foreclosure sale is not the bank or an investor but a purchaser who intends to
occupy the property as a primary residence.
Additionally, to fall within the act a bona fide lease must be entered
into prior to the date of the notice of foreclosure, which is defined as ‘‘the
date on which complete title to a property has been transferred to a successor
entity or person as a result of an order of a court or pursuant to the
provisions in a mortgage, deed of trust, or security deed.’’
A bona fide lease is one in which: (1) The mortgagor or the child,
spouse, or parent of the mortgagor under the contract is not the tenant; (2)
the lease or tenancy was the result of an arms-length transaction; and (3) the
lease or tenancy requires the receipt of rent that is not substantially less
than fair market rent for the property. 12 U.S.C. 5220 (a)(2)
The protections provided by the Act will be in place till December 31,
2014, when they are set to expire
The law office of Mitchell Reed Sussman & Associates has specialized in real estate, bankruptcy and business litigation for over 30 years. They can be contacted at www.palmspringslitigationattorney.