Posted on 06/18/2012 6:34:09 PM PDT by ducttape45
1. The tenant is not a party in a foreclosure.
2. A lease goes with the property. The bank would honor the remainder of the lease.
3. If the lease is month to month, the bank could, when gaining ownership, give notice to the tenant that the month to month lease was terminated. In that case, whatever the state laws are, would control the length of notice. In Calif. that would be 30 or 60 days notice.
4. A rental agreement, verbal or written, IS a legal right/interest to use the property according to the lease terms.
5. I would advise the tenant to get advice from a real estate attorney.
Just curious: couldn't that principle cut both ways?
Just curious: couldn't that principle cut both ways?
You need to consult with a local Realtor who can access Foreclosure Radar or whatever Realty Trac system that is available in your area to see if the home is in forclosure and when the expected sale date is. If you have a long term lease that extends beyond the sale date, you should hire an attorney to serve notice of your extended tennacy to the court or trustee who is holding the sale. Please consult with a Realtor and an attorney on your rights as a leaseholder. Good Luck!
http://www.rentlaw.com/news/2008/tenantforeclosure.htm
I too would advise speaking to an attorney, but the most they can DO is file appeals which cost the tenant a bunch of money he probably doesn’t have, and at the end, you will still have to move. Filing appeal after appeal will stall for time, but the money it costs, plus having to pay the rent in the meantime, can kick most people’s behinds.
If you need the time and have money to burn, go for it, but why go through the aggrevation? Use that money and move.
I’m not quite sure what you mean. What *I* mean is that, you may find yourself in a situation, as I did, that the law describes in scary-precision accurate detail. Mine was, a caretaker for my uncle who had willed me over $400K flat out stole his estate. In CA, the laws governing financial elder abuse are flamingly clear, they are written in very simple non-legalese. Etc; etc; etc; There is a presumption in elder law that a non-relative who acquires all or part of an elder’s estate received it by trickery of some sort, just like there is a presumption in law of “innocent until proven guilty”.
She got just about all of it. It took me $30,000 in legal fees just to freeze the bank account that contained that which she had stolen but not yet dispersed. Just to get the TRO.
What I mean by “the law does not apply itself” is that the law does not give a crap about you, unless, of course, it decides to pounce on you and your activities. There is no magical authority out there seeking to redress wrongs, looking to have events conform to legalese. You have to sue/litigate to get others to conform to what is written in the law, no matter how closely someones’ actions appear to match what appears to be a description of a violation of the law. Just like, a prosecutor would have to do that to you if he/she decided you were guilty of a crime and decided to prosecute you. And it is astronomically expensive. Unbelievable. When I see the bills from my attorney, I fall over.
Something like:
Paralegal: Sent Mr X notification of blahblah , 10 mins $35.
Atty: Asked paralegal did you include XYZ?, 10 mins $75.
Para: Wait, I’ll check 10 mins $35.
Para: Yes, I sent it. 10 mins $35
Atty: OK, good 10 mins $75
Para: Thank you, 10 mins $35
So for me to get an email about something that happened, didn’t happen, might happen, is supposed to happen, could have happened but we don’t have this document yet, and if it happened, wouldn’t necessarily control anything, is $290.
In a criminal case the prosecutor isn’t spending his/her own money; If you are the target, it is up to you to “de-apply” the law, and the law does not care how much money you may have to spend to clear yourself. Mine was a civil case. I swear, my attorney charged me for the time it took to take my checks to the bank and deposit it.
I’m not a lawyer, and I’m not too familiar with the Indiana laws. I work in Property Management in Illinois, so I can only give you a couple general pieces of information.
You should be able to easily look up online what the landord-tenant ordinances are in your state and locality. Those will supercede any lease you may have (meaning clauses in your lease that conflict with them are unenforceable), and also contain provisions that can apply even if you don’t have a lease. Normally, without a lease, you are treated as if you had an implicit, verbal month-to-month agreement that can be terminated by either party by giving proper notice.
There can be exceptions to those ordinances, for example, if the property is owner-occupied, so look out for those before you try to determine if any of the ordinances can be used in your favor. There are often exceptions which provide the ability for breaking lease agreements by the owner in the event of foreclosure, so that’s another thing to look for. If that’s not in the ordinance, it may still be in your lease agreement.
If you need legal advice, (and I almost hate to recommend this simply because, working for a landlord, these folks are the bane of my existence), there are groups called tenant unions that base their entire business on helping people find ways to turn these ordinances and lease agreements to their advantage. Even if they can’t help you stave off eviction, they could point to some violation of the ordinance or lease that would allow you to sue for civil compensation that might mitigate your situation. If they can find a legitimate violation, most landlords will settle out of court, rather than face judges and juries that usually render verdicts favorable to the “little guy”. I don’t know if that will hold true for mortgage companies, who may have armies of lawyers at their disposal.
As for eviction, that’s a process you can usually fight in court and drag out for quite a while, depending on the state laws. There are very specific laws that must be complied with regarding serving proper notice that can force the evictor to start the whole process over if a judge finds they were not satisfied. After the notice is properly served, you still will have a day in court before the judge issues an eviction order, and then another delay before the sheriff will actually serve the eviction order. So, months can pass between the initial eviction notice and when can you be forced to legally vacate the premises.
Do some research on the laws and read your lease, if you have one, to get a general idea of what you are up against. Then go out and find a lawyer, or at the very least speak to a tenant union, or if you can a “human relations commission” or other government advocate group that is devoted to helping people with these matters.
I am not a lawyer, and I never played one on TV!
I am not in your state, but where I live if they call it a “sheriffs sale” it’s for back taxes and not a bank foreclosure.
You might be able to pick up a good deal! Here you would need to call the county and ask if the property is being sold for back taxes. I don’t know about Indiana.
Also, the new owner may still want to rent to you, no?
The advice about not making rent payments might be practical, but it’s not necessarily wise. Even if the process of eviction is not sped up by failure to pay rent, the owner can certainly get an order of default for the unpaid rent during the eviction process, and even without that, they can put the debt on your credit report and consign you to constant harassment by collection agents until the debt is paid.
Unless they decide they won’t bother to try and collect, you can probably forget about ever getting a mortgage, or renting from another landlord that does any kind of screening, if you were to follow that route.
My first post was as it relates to PA where I reside based on a month to month lease.
This info is for Indiana and is a little different, but not much. As I said, you can make an attorney rich or save yourself the aggrevation...OR you can sue your former landlord for monetary damages.
Indiana
http://real-estate.laws.com/tenants-rights
Eviction in Foreclosure Rights:
When economic crises cause a landlord to default on the property’s mortgage, the underlying bank will assume the role as the new landlord. When this happens, the bank will typically sell the property as quickly as possible, resulting in the eviction of tenants. Although this situation is impossible to predict or halt, the Protecting tenants at Foreclosure Act of 2009 provide that leases survive foreclosures. The legislation allows tenants to stay at least until the end of their lease and month-to-month renters are entitled to 90 days’ notice before a forceful move-out is realized.
In addition to the protection awarded under the act, tenants have the right to sue for breaking the promise latent in the rental contract. When a landlord defaults on a mortgage payment they are ruled accountable for the economic suffrage imposed on their tenants. To sue, file a complaint in your local small claims court to recoup the losses associated with moving expenses, apartment searching costs, difference in new and old rent, application fees and other costs associated with relocation.
Hi,
You’re reminder that “the law does not apply itself” brought a lot of light to the discussion.
It got me to thinking of some other generalities, like “possession is 9/10’s of the law.” Since it’s the responsibility of the bank or whoever holds the deed to the property to act, and the costs of this are pretty high, it’s possible that the originator of this thread is in pretty fair shape. Add to this the tenant protection rules and government-funded agencies, the occupant has more advantages than he’s aware of. They don’t like courtrooms any more than we do.
Sometimes a little knowledge and resolve are enough to persuade the other party to negotiate more favorable terms. “Step on my head and I’ll bruise your heal,” is a very effective posture in something like this.
I’d suggest the poster do the homework and find an attorney willing to school them. I did that once and was charged $100 an hour. Two hours’ worth of tutelage, which I prepared myself for in advance, proved invaluable.
I’d also use everything and anything that might offer some advantage, especially government agencies. I’d oppose in principal any attempt by the government to say, plant apple trees in every backyard. But if the tree is planted, I’ll still eat those apples.
I plan on staying here as long as possible, but I also want to get some legal advice on what to do and what to expect.
This is a duplex unit, two houses joined in the middle (old Air Force housing). I thought it strange that each half would be mortgaged through different companies but I'm finding out that's not so strange after all.
I would love to be able to purchase my half if only I could get someone to talk to me. That's been the hard part.
If you are a real estate broker, can you personally recommend someone for me to talk to? A listing of attorneys perhaps?
I plan on staying here as long as possible, trust me. I’m kind of hoping I can land a good job somewhere else in the US and just use the saved money to move on!
I’ve actually been here almost 40 months! I just don’t think the bank has been getting their money for the past 18.
Okay, it's not a duplex any more than a row of ten rowhouses is a tenplex - - your house is a twin. (A "duplex" is a house - - single, twin, or row - - that has two units, usually a 1st floor unit and a 2nd floor unit.) It's (apparently) a coincidence that the owner of the other house (the twin house that's connected to yours) is also in foreclosure.
Anyway, I'm glad you got your deposit back. At least you're square in that way and you won't lose anything. The wheels of foreclosure can spin very slowly. If you remain in the house for "free" while you look for a new home you can actually come out ahead. I don't know if I'd waste any money on a lawyer, though, unless somebody is trying to screw you over.
Like I said in an earlier post, banks with properties on their hands will sometimes let tenants remain if they pay the utility bills and keep the house occupied. It can make it easier for them to market and sell, and help prevent vandalism and looting. I would run the idea past your realtor and maybe he/she can put you in touch with the appropriate person at the bank that is foreclosing. You may be able to come to an agreement. My daughter and her roommates got about 4 rent-free months in the house she was in as her landlord was being foreclosed on.
I wish the bank would talk to me so that I can find out if they would like for me to stay in it, but as mentioned before no one will talk to me. It's the silence that has me frustrated the most. I like communication, not stone cold silence. It makes me very nervous when the banks won't at least give me a heads up on what's coming my way.
I plan on staying in it as long as I possibly can, but if I am forced to move I've been given permission to take the electrical appliances with me, i.e. the stove, washer/dryer set, refrigerator, ceiling fan, etc. Like someone said in another post, the house will be gutted within a short amount of time if people find out it's empty.
Searching for ‘indiana “tenant’s rights” foreclosure’ gives lots of good links. There’s even a bloomington law school that has a program.
You’ve got the best advice you’re going to get here.
You apparently are a squatter in Indiana law without any rights, though the Federal law may make a difference.
I’d check into some of those links. You should be able to get a good understanding of what you should do.
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