Friday, January 10, 2014

The Protecting Tenants at Foreclosure Act of 2009

So the other day (or week, or month...) I got involved in a pro bono case involving an attempt to oust a couple of tenants from property that had recently been foreclosed upon. A writ of possession was issued under the foreclosure case itself (there was no eviction action) and I was asked to try to keep this from happening using the Protecting Tenants at Foreclosure Act of 2009 ("the Act").

What does the Act do? Well, to keep it short, the act prevents purchasers from kicking innocent bona fide tenants to the curve and in essence acts to force an assumption of any valid existing lease onto the new landlords. There is relatively little case law in Florida about this. So how do things work when this sort of thing comes up?

Step 1: The new landlord must give notice to vacate of at least 90 days to any bona fide tenant living on the property. A bona fide tenant is defined as being one who is unrelated (with limits) to the previous owner; entered into the lease agreement at arms-length; and pays rent which is reasonable relative to local market conditions. If the notice does not give 90 days, it is defective and cannot be enforced. See Fed. Nat'l Mort. Assoc. v. Jenkins et al., 21 Fla. L. Weekly Supp. 73b (Lake Cty. Ct., 2013), citing Logan v. US Bank National Association, Case No 10-55671 (9th Cir. USCA July 16, 2013); see also Joel v. HSBC Bank USA, Case No 10-13029 (11th Cir. USCA 2011). The Act does not protect squatters.

Step 2: Determine if the tenant is living on the property under a periodic tenancy or an active and enforceable lease agreement. If the tenant is in a periodic tenancy, the 90 day notice to vacate ripens 91 days after it is served and the tenant will be required to move. If the tenant is in an active and enforceable lease agreement, then the tenant must be allowed to live out the lease, subject to the following exception:

  • If the property is sold by the successor in interest to a third party purchaser who intends to occupy the property as a primary residence. In this event, the 90 day notice to vacate ripens only on the sale date where the third party purchaser takes (at least) constructive title.


- I have a valid lease, and the successor in interest has not found a purchaser. The successor in interest has given me a 90 day notice, is this legal?

It appears to be. The Act does not restrict when the notice to vacate is served after the Certificate of Title (in Florida) is entered. The successor in interest may issue a 90 day notice immediately, but it does not go into effect until the sale date to a purchaser intending to live on the property as a primary residence.

- When can a 90 day notice to vacate be given to me?

In Florida, the day the Certificate of Title gets entered into the docket, transferring title to the successor in interest. If you are living on a month-to-month basis, the 90 day notice to vacate can be issued anytime after the Certificate of Title and ripens on day 91.

- My 90 day notice to vacate does not fully describe the property I am supposed to vacate. Can I fight to stay in my home on the grounds that I've been asked to leave an ambiguous property?

There is nothing in the Act requiring the landlords to give you a "perfect notice." Attempting to remain on the property based on similar theories used to defend common eviction complaints will not likely work. A reasonable notice; given in a reasonable place; that reasonably identifies the parties and property in question will likely be considered sufficient. In fact, a judge may find that initiating litigation to maintain possession when the notice isn't perfect is dilatory in nature and may get an attorney in trouble. Then again, if the notice address is completely wrong ("123 Anywhere" instead of "456 Overthere") litigation may be appropriate.

- After my landlord's property was foreclosed upon, I murdered my neighbor. Is there anything in the Act that will protect me?

No. But the Act expires in 2014 if that clears something up.

If you have any questions regarding the Protecting Tenants at Foreclosure Act or if your old landlord has lost your rental property in foreclosure and the new landlord is trying to rush you out, you need to speak with an attorney who is familiar with the Act. Feel free to contact my firm at (386) 873-8422 or via email at