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CalAttorney2
CalAttorney2, Attorney
Category: Landlord-Tenant
Satisfied Customers: 10238
Experience:  I am a civil litigation attorney with experience representing both landlords and tenants in residential and commercial property disputes.
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I found out that my landlord's home is in foreclosure. In

Customer Question

I found out that my landlord's home is in foreclosure. In which I believe puts my family in an very compromising position. I dont know a lot of info on the foreclose status with the exception of it's been in that status since 8/20/2014. I was very disappointed and didnt pay last months rent on time. But I eventually paid a few days after the due date. He then proceeds to send me a letter of termination of lease and tells me I have 3 weeks to move. Then he changes that after I had a conversation with him. He sends me a renewed lease saying he is going up on the rent from 1200 to 1500. I started the process to find a home and I am shooting to be in one by the first of the year. What are my options? If he is not paying the mortgage with my rent and I can get evicted by the people who owns it, what can I do?
Submitted: 1 year ago.
Category: Landlord-Tenant
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

Unfortunately you made a very common error in failing to pay your rent last month. The landlord's default, or foreclosure status, does not excuse the tenant from paying rent. Just because a property is in foreclosure does not mean that the property owner is going to lose the property (many landlords do work out a deal with the lender, but more importantly, from a legal perspective, the tenant continues to owe rent every month as agreed upon regardless of the default or foreclosure).

If you plan on moving, and the landlord wants you to sign a new lease, you are going to be in a compromised position again. If you sign a new 12 month lease and you move out by the end of the year, you will be breaking the lease and will be liable to your landlord for damages (the unpaid rent until the unit is re-rented, or until the end of the 12 months, whichever is first). This can be a lot of money!

If you simply want out of the lease, try negotiating a deal with the landlord for lease termination - but you are going to need to work backward from your current position where you have agreed to a 12 month lease, but have not yet signed the lease, and work towards either a shorter (for example 3 month) lease, or an actual termination of the lease (for example 30 days).

Make sure to get any such agreement in writing.

If you cannot reach an agreement through direct negotiations, try using a mediator, contact your local bar association and ask for referrals to local mediators (there are both attorney and non-attorney landlord tenant mediators out there).

Customer: replied 1 year ago.
I am on a month to month lease. But, the end all of it is just continue to pay rent until I find a home. I just don't want a sheriff coming to the house saying you have to get out because the owner doesn't own the property any more. Is that possible?
Expert:  CalAttorney2 replied 1 year ago.

Generally the lender is going to post notice on the home prior to any actual foreclosure sale, so you would have notice well in advance of a sheriff's eviction.

Even if they were to do this, you are still entitled to notice, and the court process (outlined below), the sheriff doesn't just show up and perform an eviction.

Unfortunately, congress allowed the "Protecting Tenants in Foreclosure Act" to sunset, but there are still some protections for tenants, you do not give the state that you are located in, but here is a quick "state by state" summary of tenant rights: http://www.nationalmortgagenews.com/news/servicing/tough-choices-for-servicers-after-tenant-foreclosure-law-expires-1044042-1.html

Terminating a tenancy-

1) Notice: The first step in any termination is giving notice, the landlord can simply give notice that they no longer want the tenant to live there (this is usually 30 days, or 60 days, and it can be done for no reason whatsoever, there is no fault, and while the tenant must relocate, they are not being "evicted" and there is no blemish on their rental history), they can give a "notice to pay or quit" (usually 3 day or 5 day depending on the state, and the tenant has this amount of time to pay rent that they missed or move out), "notice to "cure or quit" (the tenant has breached the lease - broken something, noisy, etc. and must stop it or fix it within the notice period, again 3 days, 5 days, or 10 days), or a "notice to quit" (this is a 3 day or 5 day notice that says the tenant has messed up so badly they can do nothing but move out within the notice period - there is no chance to "cure" - this often happens when there is illegal activity on the property).

2) Unlawful detainer/forcible entry and detainer (this is the legal proceeding where the landlord goes to court and sues the tenant to get possession - the tenant has an opportunity to appear and defend the action, common defenses include improper notice, breach of the lease (such as failure to maintain the property - "inhabitable conditions"). If the tenant answers the complaint, the parties can take "discovery" from one another and get additional information before a court trial before a judge.

3) A judgment of possession/writ of eviction - if the landlord wins the trial, they get a judgment of possession and the court will issue a "writ of eviction."

4) Forcible eviction - this happens when the Sheriff or Constable serves the writ of eviction - some jurisdictions give a courtesy notice the day or two before the eviction, others do not, but the end result is the sheriff overseeing the landlord's movers removing all of the tenant's possessions from the property and placing them on the curb, and the tenants are forcibly removed from the property. At that point, the landlord can change the locks and the tenant can no longer return (They have been "evicted").