Im trying to rent a home that is in foreclosure and has been vacant for a year and there is a property management company that mows the lawn, when i called them they said that i can not rent out the house and that the bank can seized any property of the tenant withint 72 hours, which totally contradictory to what I understand the law to be, this is in Florida.
Residential Real Estate Lawyer
No, they cannot and your property management company is committing the unlicensed practice of law by telling you that. You have the right to rent your property and the bank cannot do anything until the court gives them an order with a sale date on your property. Even then they have to go through procedures to get a writ of possession or an eviction. You also have a right to mitigate your damages, which the rent could potentially provide if you are required to pay any deficiency. While there is no law that requires you to disclose the foreclosure, you should do so anyway to avoid yourself some problems in the future.
You will need to check your governing documents of your association to see if they have the right to seize the rent for past due assessments. There is a new statute that was enacted last year that gives associations this right, but unless the wording of the provision in the Declaration of Restrictive Covenants states they are subject to the statute "as amended from time to time," the new statute cannot be applied to give the association rights it does not have. The documents of an association are treated as contracts and no new law can be applied to retroactively change a contract.
You should consult an attorney to review the documents for you first.
This communication is not intended to create an attorney/client relationship. It is always recommended you consult an attorney in person to discuss your case. The Law Offices of Stage & Associates practices state-wide and represents homeowners and community associations. Please visit our website at www.stagelaw.com.
2 lawyers agree
First, I am not a Florida attorney so heed the advice of the prior attorney. I will caution you to look at the lien documents to see if the lender is entitled to the rent if you are not paying the mortgage.
Mr. Goldstein is a Virginia-licensed attorney only. The information is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Answering this question does not in any way constitute legal representation. Contacting Mitchell Goldstein or the Goldstein Law Group does not constitute legal representation, nor is any information you provide protected by attorney-client privilege until otherwise advised.
I agree with attorney Stage in that until such time as your house has not been transferred to the bank after a foreclosure sale, you own it and can do with it as you please, including renting it out.
With regards to the issue of whether the lender has the ability to seize rent from your tenants, please note that in almost all residential leases, the lender has no such right. In most commercial cases however, the lender requests an "attornment" which gives the lender the right to receive rent from the tenant directly. Although it is unlikely that there was an attornment given to the lender in your case, it will be beneficial if you looked at your mortgage to make sure of this.
Before you go through the trouble of obtaining a suitable tenant for your property, please pay special attention to what attorney Stage mentioned regarding the collection of rent by the Association. Most associations are now using the new law that she mentioned, to bypass owners and collect rent from their tenants to cover for all unpaid Association Fees. If you are late on your fees, please note that there is a pretty good chance they will obtain the fee from your tenants until the outstanding debt to the association is satisfied.
Real Estate Attorney
As you can see from the previous answers, this a a complex situation, and the answer depends on how far along you are in the foreclosure process, and whether your HOA is also foreclosing. Rather than trying to handle this by yourself, you should contact an experienced lawyer in your area to help you sort through your options.
Disclaimer: This answer is provided for informational purposes only, does not constitute legal advice, and does not create an attorney-client relationship. Actual legal advice can only be provided after completing a comprehensive consultation in which all of the relevant facts are discussed and reviewed.
Your property management company is wrong. A recent federal law called the Protecting Tenants at Foreclosure Act of 2009 may help a tenant caught in the middle of a foreclosure lawsuit. The federal law allows a "bona fide tenant" with an active lease to continue to lease the property through the full term of the lease. The exception to this rule is if the new owner intends to use the property as their primary residence--in which case the new owner must still give the tenant 90 days notice to vacate the property. If the tenant is on a month to month lease at the time the property is sold at foreclosure the new owner must still give the tenant 90 days notice. The bottom line with the new law is that if you have an active lease you will be able to remain in the property for the balance of the the lease or at least 90 days. Keep in mind that the tenant will still have to continue to pay the rent due to whomever is the owner.