When does a tenant need to vacate the property after a home mortgage is foreclosed?


For several years during the foreclosure crisis, a federal law gave tenants under a bona fide lease of a federally-related mortgage loan the right to stay in the property for at least 90 days following the mortgage foreclosure.   That law expired on December 31, 2014.

In 2015, Florida Legislature enacted Section 83.561 which became effective June 2, 2015. Under that law, a purchaser who takes title to a tenant-occupied residential property after a mortgage foreclosure sale cannot remove the tenant without giving at least 30 days written notice. The statute prescribes the form of the notice and the landlord must give an affidavit that the notice was given before applying to the Court for a Writ of Possession (an Order directing the Sheriff to remove the tenant and the tenant’s belongings and place the Landlord in possession of the property). There are a few exceptions: a) tenants who are not entitled to the 30 day notice requirement include a tenant who is the spouse, child or parent of the mortgagor (the borrower who was foreclosed), b) if the lease was not an arms-length transaction, and c) when the rent is substantially less than fair market value unless the rent was reduced by a government subsidy.

As always, if this issue presents itself to you, you are encouraged to consult with an experienced attorney.

Michael E. Rehr, Esq.

September 4, 2015.