Tenant Rights in Foreclosure
Economic downturns can profoundly impact your life, and one of the most common areas to take a hit are apartment and home leases. If you were terminated or laid off for downsizing, you might find yourself unable to pay rent month after month, thus prompting your landlord to take action against you. Being foreclosed upon has legal consequences that you may not be privy to, and that is why Los Angeles Eviction Attorney has prepared this article so you can understand your rights.
Who is a Renter?
Renters can be just about anyone who is leasing a property ranging from low-rent apartments in low-income areas to luxury condos in the better parts of town. People using federal housing assistance are also susceptible to foreclosure as per the eviction policy guidelines. Anyone can face eviction when they are unable to pay rent on time, and the bills pile up. Many people have found themselves in these situations and restored their financial health in due course, and so can you. Regardless of your case, every tenant has rights under the US Constitution and protecting yourself from unsavory actions by a landlord starts by knowing these rights.
The Department of Housing and Urban Development (HUD) runs a project-based rental assistance program commonly known as Section 8, and it achieves this by collaborating with private landlords. These low-income renters are often victimized as landlords attempt to evict them so they increase rent or after the rental contracts expire. Renters under Section 8 or other government subsidy are required to report such housing foreclosures immediately. The relevant authorities will oversee things to ensure that landlords or lending institutions are acting within the law.
What is the Foreclosure Process in California?
Foreclosures can either be judicial and non-judicial. Most foreclosures fall in the latter category, which means they don't involve court deliberations and intervention. Tenants first receive a foreclosure notice indicating how much time they have until they are evicted. Low-Income Public Housing (LIPH)
The state of California allows landlords to evict tenants without involving attorneys, which means they can find someone to prepare legal documents that they will file with the court. Upon drafting and filing these documents, the eviction process is considered to compete. Such an effortless manner of handling sensitive issues makes it even more critical to understand your rights when facing eviction, including identifying flaws in the paperwork.
Whether or not your landlord is acting in good faith, they must follow the correct procedure for evicting you. These steps are outlined as follows:
- Establish Legal Grounds
Apart from the inability or refusal to pay rent as per the stipulated schedule, landlords can have other legal bearings for evicting you. Breaching the terms of the agreement, disturbing the peace at the housing complex, damaging the property, or engaging in unlawful activity are some common grounds for eviction. You must be informed of the legal grounds for expulsion through either of these legal documents:
Notice to Quit – this order applies when a tenant has tenure, and this document can be presented by either party with the understanding that legal implications on both sides. In this case, the time frame must be agreeable as per the terms of tenure; weekly tenancy (one-week notice); monthly tenancy (one-month notice); and yearly tenancy (six-months' notice). The party issuing an NTQ must indicate the exact date of expiry, which is typically the last date of the current tenancy or the first day of the next tenancy period.
Notice to Vacate – this order asks you to leave the premises at the specified time. The landlord may want to sell the property, rent it to another tenant (e.g., family member) or use it for your other purposes, rent it to another family member, friend, etc.
If material breaches of the rental agreement – not about payments – are the cause of eviction, a three-day notice from the landlord will suffice.
- Serve the Notice to Tenant
Once the landlord has identified legal reasons for evicting you, they must proceed to serve the notice and ensure you get it. Beware of unscrupulous landlords who may overlook this step and pretend they served the papers. Notifications can be delivered to your doorstep, issued to an occupant who is a legal adult (18 years+), get a court order to post the advice on the front door.
- File an Unlawful Detainer Action
While evicting tenants may elicit pity from neighbors and others, tenants can also be at fault when facing evictions, and they play games such as claiming they did not receive a notice then wait out the time frame without taking necessary action. Such methods may work now but not in the long run – especially when you are evidently at fault. If the notice duration expires and you still reside in the premises, your landlord will file a civil suit otherwise known as an unlawful detainer action.
At this juncture, the legal paperwork is getting complicated, and it is highly advisable to enlist the services of a quailed lawyer to examine these documents. Landlords who are seeking to save money on this process will have document preparers draft notices and subsequent orders. It is not unusual to find the paperwork was incomplete or is mired with inaccuracies, especially when you have ignored a warning to leave the premises. Also, the court will summon you once the civil suit is filed, so you will need proper representation to argue your case.
- Tenant Gets Additional Time to Respond
Once you receive the unlawful detainer action, you have five days to respond or vacate the home or apartment. Time is of the essence, and you must start finding a new housing arrangement in less than a week, and the situation gets dire if children are involved.
Finding a new place to live is not easy even when money problems are not the cause of eviction. Some tenants buy themselves extra time to figure things out by filing a suit complaining about how they were served. They can also submit a response to the civil litigation explaining why they remain on the premises.
- Request the Court for a Trial Date
Failure to file a response to the pending case means your landlord can proceed with the eviction process without involving the court. If you respond, the landlord will ask the court to determine a trial date, which usually happens within 10 – 20 days of this request.
- Court Proceedings
At this point, you have ignored the notice to vacate and have refused to respond to the civil suit, thus necessitating your landlord to seek a judge's intervention. They will present evidence of your contractual breaches and the supporting documentation. Upon examining these records and hearing the case, a judge will issue a final decree.
- Eviction by a Sheriff
If a judge does not rule in your favor, they will sign a decree terminating your right to reside in that apartment or home. Your landlord will then put things in motion to facilitate the official moving-out, and this entails taking a Writ of Possession to the sheriff's office.
The sheriff will serve you with a copy of this legal document, which also indicates a five-day notice to leave the premises. Once this timeframe runs out, the sheriff and landlord will come to physically remove you from the house then change the locks to bar you from entry.
Understanding this seven-step process of eviction is crucial so you are not mistreated even when you could be at fault. As you can see, landlords must act within California's eviction guidelines, and you have a right to challenge any indication of foul play.
What are My Tenant Rights During Foreclosure?
If a landlord has defaulted in paying mortgages, the home they are renting out to you could be facing imminent foreclosure, which means you will have to vacate after this process is over. Tenants have a 90-day notice to find another home, and during this time, they are expected to keep paying rent as usual and honoring other terms of the lease agreement.
The Protecting Tenants at Foreclosure Act of 2009 (PTFA) allowed tenants to continue renting the property until the duration of their lease. Nevertheless, things changed after this law became defunct on December 31, 2014, and since then, tenants’ rights are determined by the states. California allows tenants’ rights to carry over after a change of ownership – in this case, when the bank takes over – for at least 90 days.
Your landlord still has ownership of the property, and they reserve the right to evict you if you breach the terms of leasing. There are exceptional circumstances where a judge may order you to pay rent to another entity, but if there is no such communication, then its business as usual. Even when things remain cordial between you and the landlord, the bank could attempt to evict you by sending foreclosure documents addressed to you or addressed as "Jane Doe" or "John Doe." Ignoring court notifications will not help you; Los Angeles Eviction Attorney advises you to seek legal counsel to safeguard yourself.
Other minimum rights during and after the foreclosure include:
- Continue receiving utility services, repairs, and routine maintenance
- Getting your security deposit after leaving
- Be free of harassment and other unsavory treatment from your landlord
- Contest an eviction and remain in the property until a judge declares otherwise
What Can I Do After Receiving Foreclosure Papers?
As mentioned above, tenants can be evicted for breaching the lease agreement or when the property they are renting is being auctioned off by the bank. If you do get served with foreclosure documents, there are legal steps you can take to protect your rights:
- Filing and Submitting Court Documents
You are required to complete an Appearance form within two days of the return date indicated on foreclosure papers. The court will respond by outlining what must happen as you fight this eviction without you going to the courthouse.
File an Answer form within fifteen days of the said return date and write the "special defenses" section, mention your right to reside in the premises for a minimum of 90 days until a new title is given. Other special considerations for the defense part could be you or someone in your home is over 62 years, or they have some form of disability.
- Attend court hearings
Going before a judge is an opportune moment to plead your case and why you may need more than 90 days to vacate the home. You could have young children who are still attending a school, or someone could be battling an illness that shifts your focus to caring for them. A move would be an inconvenience under these circumstances, and hence the request for additional time.
- Ruling by a Judge
After hearing your side of things, a judge will decide on a new moving-out date to which you must obey. Failure to vacate on or before this data will be seen as contempt and the landlord will likely get a marshal to remove you forcefully, but if the foreclosure papers did not bear your name, they could not touch your items. Nonetheless, this does not stop them from trying to evict you, and the ensuing spectacle can traumatize your family. In such an event, contact a Los Angeles Eviction Attorney to intervene on your behest.
How Can I Prepare for an Eviction Trial?
Evictions can be emotionally draining, no matter which side triggered this decision. You could be holding down a full-time job, doing carpools, and other family activities that occupy your time. As seen above, being served with eviction papers is not the end as you still have a fighting chance to stop the injunction or at least get an extension. Winning an eviction case requires meticulous preparation so you can have the necessary documents and evidence needed by the court. Bring the following documents with you:
- The lease or rental contract
- Correspondence you wrote or received about the home
- The eviction notice you received
Also, bring the following documentation of applicable:
- Photographic evidence of damage
- Proof of unsafe or unhealthy conditions
- Inspection reports of the rental property
If you deem this eviction unjust and perhaps triggered by your relentless complaints about the rental unit, it is vital you invite someone who can attest to this effect. The material witness may get cold feet and refuse to appear in court, or they could be compromised. In such a case, a subpoena issued and served on the witness, so they are mandated to give testimony. The warrant also helps in getting time off from work in case their employer raises an issue, and if they still fail to show for one reason or another, having a subpoena helps you.
The court will grant a continuance until this witness is available, but this provision does not apply if there was no subpoena in place. Only an attorney can issue a warrant, but you can get a pre-issued one before hiring a Los Angeles Eviction Attorney to represent you. For defendants whose English proficiency is low, they can request the court to assign an interpreter or have a family member interpret the unlawful detainer proceedings.
The same applies to defendants who are hard at a hearing; submit a request to have a sign-language interpreter at least five days in advance. Remember, your accommodation arrangements are at stake and therefore, you want to do everything possible to ensure you win the case.
What Happens During an Eviction Trial?
Such cases are usually presided over by a judge or commissioner with or without a jury present. If you wish to have a jury hear the case, your attorney will post a request beforehand and facilitate jury fees.
The plaintiff – in this case, your landlord – gets to speak first once the case is called, and they start explaining their reasons to evict you. You, the defendant, will then have a moment to relay your side of things and provide the necessary evidence. If the landlord is victimizing you for complaining about terrible rental conditions, you need to show proof of this before the court. Be ready to answer questions from the judge about this evidence or other issue related to the case.
After deliberations, the judge will issue a decree of their final ruling and explain the details, so you understand. The court clerk will give you a copy of this ruling for your reference. Winning or losing an unlawful detainer trial when facing foreclosure has legal implications as follows:
- Winning the case
If things go to your favor, the judge or commissioner may order the landlord to pay your expenses such as legal filing fees and lawyer fees provided this was included in the rental lease. You can also sue for other small claims like time away from work, a new security deposit, and other damages. The judge can also determine how much rent you have to pay from now henceforth and in the case of a damaged rental unit, the landlord will be ordered to do repairs within a specified timeframe.
- Losing the case
Should things not go as you had hoped for, the judge will issue your landlord or property owner a Judgment of Possession proving they have a right to evict you. They will then fill out a Writ of Execution and present it to a sheriff who will then facilitate your removal.
If you have unpaid rent, the judge or jury could order you to make these payments in addition to paying for damages and legal expenses. The latter can only be affected if this provision was in the rental agreement.
More so, the landlord may also be allowed to claim the rent they could have collected when you stayed in the property unlawfully. The jury or judge could find you spiteful and therefore your resolve to remain an occupant was meant to hurt the owner in some shape or form; you are liable for a monetary penalty of up to $600.
What Happens After The Foreclosure is Complete?
Getting the judge to allow at least 90 days before you vacate a rental about to be foreclosed upon is helpful but not a permanent solution. The bank will continue with repossession plans, and when this time elapses, you will not have a legal basis for remaining there. However, cities with eviction or rent control laws forbid new owners from using foreclosure as a basis for evicting renters.
Many foreclosures are happening around the country and California, as one of the leading housing markets in the country, has not been spared. The National Association of Realtors notes a volatile housing market in the Southern part is prone to decline as buyers grapple with affordability. Economic downturns mean you could be renting a property whose owner is unable to keep paying for then you are hit with foreclosure papers unexpectedly.
Pending foreclosures are a matter of public record, but if you don't have a reason to check these records, then you may not be privy to this. To avoid such unpleasant scenarios, you can investigate your property by filing a Request for Notice form with the county recorder’s office asking for information on any foreclosure proceedings. These forms are readily available in stores, or you can obtain one from a company handling titles. If there is any such legal action, you will get a Notice of Sale and Notice of Default to keep you abreast of how the sale is progressing. Whenever the home changes ownership, the new owner must allow following the formal eviction process described above, starting with a three-day written notice to quit.
Mediation to Avoid Eviction Court Hearings
Not all landlords are unreasonable, and even when things start on a heated note, there is a possibility to reach amicable terms. Also, it is possible you could have breached the terms of your leasing contract, thus prompting them to act. If you don't want to engage in a court battle due to a busy schedule or other reasons, mediation is the next best option.
Mediation before or after the initial trial is possible aimed at successfully communicating the needs of each party, then arriving at a better outcome. Even when things are not spiteful, it is highly advisable you enlist a lawyer who is adept in handling eviction cases so they can guide you. If you have any questions please contact our Los Angeles eviction lawyer today for a free consultation.