The Consequences of Rental Property Foreclosure
Real estate and foreclosure law is all about resolving competing interests in the same piece of property. A landlord has an ownership interest in the property, while the tenant has a lease interest in the property, and the foreclosing lender has a lien interest in the property. In most instances, the lease interest held by the tenant is the lowest priority interest, which means a foreclosure generally wipes out the lease.
State Priority Rules
The laws of each individual state govern the priority claims of different parties after a foreclosure. The details are different depending on where you live, but in general, foreclosure of a mortgage or other type of property lien will wipe out a lease on the same property. Legal technicalities may provide minor exceptions to that general rule, but the exceptions are rare.
Residential Protections
Before 2009, renters of a residential property were subject to immediate eviction after a foreclosure sale. However, the rules changed in May 2009 when President Barack Obama signed into law The Protecting Tenants At Foreclosure Act. This federal law alters general priority rules under state law by providing that renters of residential property can remain on the property until the renter's current lease term expires.
Residential Exception
The Protecting Tenants At Foreclosure Act contains a couple of exceptions. First, the Act only applies to arms-length lease agreements, which means agreements between unrelated parties. The Act does not protect, for example, a sibling or other relative who is renting from the person being foreclosed on. Additionally, the Act does not protect tenants if the new owner after foreclosure intends to occupy the home for hemself. A foreclosure purchaser who intends to occupy the property as her primary principal residence can evict the current tenant by giving at least 90 days advance written notice after the foreclosure sale.
Commercial Property
The federal Protecting Tenants At Foreclosure Act does not apply to commercial property foreclosures. General rules of state law priority always apply in the commercial context. This means that most, if not all, commercial leases are dissolved by a foreclosure sale. Commercial tenants will only be allowed to remain on the property if they enter into new lease agreements with the new owner. The purchaser at the foreclosure sale may or may not want to renew lease agreements with pre-foreclosure tenants.
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