We have put our Oregon home on the sales market this month. We currently have tenants in home on a fixed term (2 year) lease that was scheduled to end at the end of 2012. So our tenants have lived in our home for more than 1 year. We received an offer and are working on writing up an addendum to the lease. The sale of the home is a short sale so we are dependent on the banks approval for timing of the closing date and during this time period we are staying current with our mortgage payments. Ideally, we would like our tenants to stay in the home until we receive notification of the banks approval. Our realtor wrote up the offer for a 60 day period from bank offer to closing to allow us to give our tenants 60 days notice to vacate the property post the banks approval. Our tenants are pushing back that they would like the option to give a 30 days notice anytime prior to the banks approval and not be liable for rent at that time. Our original lease states, that if you terminate the lease early the tenant is liable for the balance of the rent amount owed until the lease term ends. We were looking to ammend the lease to state that 1) 60 days notice would be given from time of bank agreement of sale and 2) if tenant decides to vacate prior to the time of bank agreement that they would be responsible for the balance of the rent until the bank agreement statement or till the end of the lease term whichever came sooner. Our big question is, can we legally ask for #2 in this situation or did we forgo this right by putting our house on the market. We need our tenants to stay in the property during this time period to be able to pay our mortgage.
State/Country relating to question: Oregon
You can ask BUT the tenant doesn't have to agree - they have a fixed lease term.This is what the saying "cash for keys" is all about. That you pay the tenant "cash" for their early termination of the lease.The cash for keys term is also used is offered by many mortgage companies to home owners who are being evicted because of foreclosure. The process involves the mortgage companies giving money to the home owner in return for the keys and the home turned over in good condition. This program helps the home owner by giving him cash to move and the mortgage company by receiving the home in better condition it might otherwise be returned as the program seems to help minimize some people's need to vandalize the homes during an eviction. Generally, the set amount is higher if the home owner moves quickly and the amount is reduced if the move takes longer. Regardless, the home owner will be required to be out of the home by a certain date. To get cash for keys from a mortgage company, the home owner must abide by certain terms.So you may want to offer them an incentive to leave when you need them to leave.Otherwise, they don't have to leave until the end of the lease term AND a buyer of the property takes it subject to the terms of the lease - they can't evict them till the lease term is over.So you are in a tough spot here - your best bet is to negotiate with tenant a reduced rental rate with you have the option to give them 30 days notice to vacate.You are going to have to crunch numbers to see what your bottom-line is - what is the minimum you need to assist you in paying the mortgage.Even if the property was foreclosed upon - your tenants have the right to stay now.
Before President Obama signed the "Protecting Tenants at Foreclosure Act of 2009," most renters lost their leases upon foreclosure. But this legislation provided that leases would survive a foreclosure. The tenant could stay at least until the end of the lease, and month-to-month tenants would be entitled to 90 days' notice before having to move out (this notice period is longer than any state's non-foreclosure notice period, a real boon to tenants).
An exception was carved out for the buyer who intends to live on the property -- this buyer may terminate a lease with 90 days' notice.
Thanks for the information. The additional part of the issue, is that part of the reason we have chosen to put our home on the market and to work with our lender for a short sale approval (the sale of our home will cover our first, but the second will be out some $,) is that our tenants have been unrealiable in their monthly payments. Over the past 16 months, 10 months have been late, 3 bounced checks and they currently still owe us for 4 months of late fees. We sent them notification that they had 7 days to pay the late fees, if not they would be consider in default of the lease and they still haven't paid. So we have terms to evict them and terminate the lease, but at this point we need their rent to cover our mortgage so have chosen to allow them to stay. We don't feel like we "owe" them any cash for keys at this point since they have put us into this situation where we are having to charge our mortgage to our credit cards to float their rent until whenever they feel like they can pay us. We just want to make sure we are within the legal limits of what we are asking for. We are currently in negotiations with them on the amended lease terms. We have gone back and asked for 30 days notice for both landlord and tenant to terminate the lease and vacate the home. We are not going to require them to pay any balance of the lease term for vacating the home earlier than the end of the lease term. We think it is fair for both parties. We plan on refunding their deposits (minus any fees owed.) But at this time are asking for full rent payment while living in our home. Any other suggestions?
I understand your dilemma - you need the money even if they pay late and/or are unreliable.So you're stuck with either accepting that situation and pursuing an eviction OR evicting them now OR "cash for keys" situation.What I would do in your situation is - that try and get your monthly rent BUT immediately upon a short sale agreement (an agreement executed by you, the buyer, and the bank) - immediately file an eviction action against the tenant to oust them. A landlord may start an eviction against a tenant on a 30-day notice for cause, on a 24-hour notice for dangerous or outrageous behavior, on a 72-hour notice for non-payment of rent, or on a 30-day notice for no cause. (In some cases, such as in subsidized housing and rental of a mobile home space, the landlord may not be able to evict with a 30-day no cause notice.
A landlord's 30-day notice for cause must be based on a material non-compliance by the tenant with the Rental Agreement or non-compliance with the tenant's duties under the law which materially affects health and safety. The landlord's notice must also give the tenant 14 days to fix the problem. If the tenant fixes the problem, the landlord cannot evict the tenant. If the tenant does the same thing again within the succeeding six months, however, the landlord can evict the tenant with a 10-day notice.
The most obvious tenant defense to an eviction for cause is that the tenant simply did not do what the landlord is complaining about. Another possible defense is that the tenant's actions are not serious enough to cause eviction; in other words, what the tenant did wasn't a material breach of the rental agreement or of a duty that affects health or safety.
Finally, the tenant may attempt to prove that the tenant has in some way remedied the landlord's complaint, by repairs, payment of damages, or otherwise.
20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
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