Can you evict a holdover tenant for non-payment


#1

If we accept a tenant’s lease after a trustee sale but they don’t pay rent, can we evict them as a landlord or do we still have to give them 90 days due to the foreclosure?


#2

That’s a good question, Sherry, and one that remains unsettled to my knowledge. There is a strong argument to be made that once there is a new lease in place, the tenant no longer needs the protection afforded by the 90 day rule adopted by HR 1247 ??Protecting Tenants at Foreclosure Act of 2009??. There is a new leasehold interest established in good faith which is not interrupted by a subsequent foreclosure so the general rules concerning tenancy should apply, including a 3 day notice to vacate for failure to pay rent. If on the other hand, a new lease is entered and the landlord soon thereafter gives the tenant a 30 day notice to vacate without cause suggesting an intent to circumvent the 90 day rule, then I would anticipate a different result.


#3

my holdover tenant says thye do not have to pay rent per the original lease. It is a month to month lease. For 90 days they do not pay rent, is that right


#4

Hi Steve, This is really an interesting question and one that I have discussed at length with a legal advisor. The statute is silent regarding the payment of rent during the required 90 day notice. Although the rent is technically due during that time you would be ill advised to try to evict them for non payment. That is not to say once they move out or you are forced to evict them after the 90 days you cannot seek a judgement for the past due rent. These issues are largely the reason why so many banks and investors prefer to offer the cash for keys incentive. Keep us posted on how this works out.