what if there is a provision for foreclosure in the signed rental lease agreement for a 90 day notice in case of a foreclosure, does that agreement trump the fed law giving tenant the remainder of the term of the lease? thx
one more thing regarding the NOD / NTS, since these are both recorded docs, do you think perhaps the act is holding the tenant responsible for checking any public recording of these docs before signing a lease? rather than basing the judgement on the tenant’s whereabouts and ability to have seen the NTS physically on the door… or is that asking the tenant to take too much responsibility.
I honestly don’t know the answer to that hypothetical question. But I can avow that I’ve never personally seen such a notice clause used in a California residential lease/rental agreement. And, I’ve looked at a lot of them because I use written lease/rental agreements continually on my own rentals. In an unlawful detainer action undertaken by the new owner, and, if defended properly by the tenant, the case could drag out for quite a while.
In my opinion, a requirement that a prospective tenant search the county records for a notice of default on the property, would be placing too much burden and responsibility on the prospective tenant. As you know, many NODs are eventually cured, plus there are almost 4 months before a sale can take place. Whereas noticing a sale by posting as well as recording, will give notice to tenants, neighbors, etc. The sale is imminent (21 days) and that urgency compels immediate attention by the tenant.
Litigation? This could easily come up during a standard UD case. Not unusual at all for defendants to answer a UD complaint, with arguments heard by a judge. Also, note that I’m saying that I believe the judge will interpret “notice of foreclosure” as actual notice to the tenant - NOT - the recording of a NOD or NTS.
By the way, my definition of litigation includes an answered UD complaint. And, unfortunately I’ve had to personally experience several of them 
If a court’s interpretation of the law were “actual notice,” wouldn’t that place the burden of proof on the landlord as to the date the tenant received actual notice? If so, this seems even more favorable to a tenant’s case; the tenant could argue for the latest believable date that suits their needs.
Upon more reflection on the phrase “such notice of foreclosure,” as used in the Protecting Tenants at Foreclosure Act, I’m reverting to my original opinion that such notice cannot be actual notice until the foreclosure sale takes place. My reasoning: there are often many postponements in trustee sales due to ongoing loss mitigation efforts and processes, e.g. loan modification, pre-foreclosure sale, short sale, deed in lieu negotiations, bankruptcy filing by owner, etc. I realize a court may rule otherwise if this is tested; and I think it would be interesting to understand the logic and the opposing arguments in such a case.
tom, do you know a decent attorney in northern CA who would know this and would not try to research and learn all this on my clock ? i would also keep his number handy for evictions, etc. thx
Hi radaruser, You’re asking a question that an attorney will unfortunately not have a definitive answer for, because there’s room for interpretation by a court (judge), and no existing case law. A UD attorney will be happy to take your fees and represent you, but it would be his argument against the other side’s attorney. I’ve done recent unlawful detainers in pro per, and thus can’t recommend an eviction attorney. I should also say that none of my UDs have been pursuant to a foreclosure situation. If the case is unlikely to be answered with a credible defense based on the Protecting Tenants At Foreclosure Act, I would suggest finding a local attorney who does a lot of evictions in your county, and knows your county superior court judges. If, in your case, you happen to be the new owner pursuant of a trustee sale, I’m assuming you’ve contacted existing tenants and talked with them? Offered “cash for keys” or something to encourage them to vacate? Sorry I can’t be more helpful …