Protecting Tenants at Foreclosure Act of 2009 Pub. L. No. 111-22, ? ? 701-704 (2009)
During the foreclosure crisis, numerous renters in good standing have been forced to relocate after a foreclosure sale with little or no notice. To address this critical problem and to stabilize neighborhoods, Congress passed the Protecting Tenants at Foreclosure Act (Title VII of S. 896, Pub. L. No. 111-22, ? ?701 - 704 (2009). This law immediately went into effect when President Obama signed it on May 20, 2009, and it applies to all pending and future residential foreclosures.
Tenants With an Unexpired Lease Term.
Tenants with an unexpired lease term: The law requires a new owner acquiring property at a foreclosure sale, including plaintiffs acquiring the property, to honor all terms and conditions of existing leases. This means the tenant can remain in the property for the time remaining in the lease term. However, if the new owner wants to live in the property, then the new owner may terminate the tenancy by giving the tenant at least 90 days written notice to vacate.
Tenants Without a Lease.
Tenants without a lease: In the case of tenants without a current lease, usually month-to-month tenants, the new owner must provide the tenant with a minimum 90 day written notice before terminating tenancy. This also applies when there is an unexpired written lease which has less than 90 days remaining.
Section 8 Voucher Participants.
Section 8 voucher participants: When the tenant is a participant in the Section 8 voucher program, the new owner takes the property subject to the Section 8 lease and the Section 8 Housing Assistance Payments (HAP) contract. Once again, the only exception to this provision is when the new owner wants to live in the property and has provided the tenant with a minimum 90 day written notice terminating tenancy.
Most Significantly, Residential Tenancies Now Survive The Foreclosure Process.
The implication of this change is that a tenant's right to continued possession of the property is now outside the scope of the foreclosure action, and therefore the foreclosure court should no longer issue writ of possession when a bona fide tenant is in possession of the property. If the new owner after foreclosure desires to terminate the surviving tenancy, he/she must give the tenant 90 days written notice to vacate. Any notice sent prior to the certificate of title does not comply with the new statute and has no legal effect and a new notice must give a new 90 day written notice to vacate. If the tenant fails to comply with the notice, the new owner would then be required to file an eviction action in County Court pursuant to Chapter 83, Florida Statutes.
These changes apply only when there is a "bona fide tenant" in the property, as defined in the new statute.
What to Do
The best way to ensure your rights to possession is to file an answer to the foreclosure complaint. In the answer state that you are a tenant in possession and request a hearing before the judge.
If a Writ of Possession Has Been Posted on Your Door.
If a writ of possession has been issued in error an affidavit must be immediately filed with the sheriff with copies to the Clerk of the Court and all other parties to the foreclosure.
AFFIDAVIT OF [TENANT'S NAME]
I, [tenant's name], make this sworn statement under oath before a Florida notary. I am over 21 years of age, competent, and at the time of the writing of this affidavit, and I am a resident of ______________ County Florida. I am the Defendant known as [unknown tenant #1 in possession] in case number __________________ and make this sworn affidavit upon personal knowledge. I am presently a bona fide tenant in possession of a property in foreclosure located at [tenant's address]. I hereby exercise my right under the Protecting Tenants at Foreclosure Act, Pub. L. No. 111-22, ? 702 (2009) to retain possession of the above described property. I make this claim to stop the enforcement of the writ of possession pursuant to Rule 1.580(b) of the Florida Rules of Civil Procedure.
I am serving a copy of my affidavit to the party causing issuance of the writ and to the Court.
FURTHER AFFIANT SAYETH NAUGHT.
If you have any further question you may call Leonard Cabral, Esq. at (407) 330-4998 for assistance or representation. Leonard Cabral files answers and other pleadings for tenants in possession for a fee.
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