Protections for Tenants in Foreclosed Properties Kent Qian - National Housing Law Project August 23, 2011

Protecting Tenants at Foreclosure Act of 2009 (PTFA) Public Law , Sections Enacted on May 20, 2009 Amended on July 21, 2010 (PL ) Section 702 protects bona fide tenants Section 703 gives additional protections to Section 8 voucher holders Sunsets on Dec. 31,

Section Coverage Protects all bona fide tenants in any dwelling or residential real property A lease or tenancy is bona fide only if: Tenant is not the mortgagor or the mortgagor’s child, spouse, or parent; and Lease was the result of an arms length transaction; and Rent is not substantially less than fair market rent (unless the reduction is due to governmental subsidy) 3

Section 702 – General Provisions All bona fide tenants Must be given at least 90 days’ notice Bona fide tenants with more than 90 days remaining on lease Entitled to stay until the end of the lease, if lease entered into before “notice of foreclosure” EXCEPTION: lease may be terminated with a 90-day notice if purchaser will occupy unit as primary residence or if lease terminable at will under state law 4

Section 702 -“Notice of Foreclosure” For a tenant to remain until the end of the lease, the lease must be entered into before the “notice of foreclosure” Date of notice of foreclosure - the date title is transferred through foreclosure (Dodd-Frank Amendment) 5

Section 702 -Rights of Bona Fide Tenants After a foreclosure, the new owner takes the property subject to the rights of any bona fide tenants, including: Return of security deposit Habitability Utilities 6

Section Section 8 Tenants Section 8 tenants are deemed to be bona fide tenants New owner takes title subject to both the Section 8 lease and the HAP contract EXCEPTION: Lease may be terminated with a 90 day notice if new owner will occupy unit as primary residence Any eviction notices must also be sent to the Housing Authority. 24 CFR (e)(2)(ii). 7

State and Local Protections State Notice Law Supplements the PTFA 60 days’ notice (Code Civ. Proc. 1161b) 30 days’ notice if owner remains on the property Notice of Transfer of Ownership (Civ. Code 1962) Local Just Cause for Eviction Laws (San Francisco, Oakland, Berkeley, East Palo Alto, Hayward, Richmond, etc) 8

Hypos Tom Tenant’s 3-BR home in Sacramento, CA was sold at trustee sale on October 1. Tom’s existing lease expires on November 1, Under this lease, he pays $1,600 in rent each month under the lease, but the surrounding homes rent for about $2,300 per month. On October 5, Ivan Investor, who purchased the property at the trustee sale, served Tom with a 60-day notice to quit. Is the notice correct? What if Tom was a Section 8 tenant? Or if Tom lived in Oakland instead of Sacramento? 9

Questions? Contact me at For more information on the PTFA and current case law, visit NHLP’s Foreclosure and Tenants web page at